Introduction
Vietnamese software programmers have developed a strong reputation worldwide, and the government considers the software industry to be very important. As a result, this industry is booming. However, more effective IP protection in the software sector is necessary to encourage further foreign investment, and to promote innovation.
Vietnam's Law on Intellectual Property excludes computer programs from patent protection as inventions. Under Article 59 of the Intellectual Property Law, computer programs are listed – along with discoveries, scientific theories, business methods, and methods of treatment – as types of subject matter that are expressly not eligible for patent protection. Instead, computer programs are covered by the Copyright Law, where enforcement in Vietnam is known to be weak.
Within the patent system, however, there are still avenues for protecting computer programs. While a computer program itself, in the form of code, cannot be patented, the Vietnamese Guidelines for patent examination provide for the concept of "computer-implemented inventions".
A computer-implemented invention is an invention involving the use of computers, computer networks, or other programmable apparatus whereby prima facie one or more of the features of the claimed invention are realised wholly or partly by means of a program or programs. This invention could be patentable if it has "a technical character, and is a technical solution for solving a technical problem by technical means to attain a technical effect". In the Guidelines, more attention is paid to "technical effect" than to "technical character" or "technical solution". It is important to note that a computer program, when running on a computer, must provide a "further technical effect" going beyond normal physical interactions (such as electrical currents) between the program and the computer. A further technical effect may be found, for example, in the control of an industrial process, in the processing of data which represent physical entities, or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process.
Another issue worth noting is Vietnamese practice regarding the patent claim format for computer-implemented inventions. The IP Law defines an invention as a "technical solution in the form of a product or a process". In practice, patent examiners usually interpret a product to be a tangible product, that is, something that can be held, touched or seen. As a result, the designation of subject-matter of a claim must be a tangible product or a process. Accordingly, for a computer-implemented invention, designations such as "computer program", "computer software", "signal-carrying program" or "signal structure" are not acceptable, as these are intangible. Alternative designations such as "computer program product" or "software product" are similarly not permissible. Patent applications filed in Vietnam with these claim formats generally result in a rejection.
Copyright Protection
Article 22.1 of the Intellectual Property Law defines the computer program as "a set of instructions expressed in the form of commands, codes, diagrams and other forms that, when incorporated in a device readable by a computer, are capable of enabling that computer to perform a task or achieve a particular result." In addition to this, the IP laws also state that the computer programs shall be protected in the same manner as literary works, regardless of whether expressed as source codes or machine codes. Article 59 of the IP laws specifies seven types of objects that cannot be protected as inventions including computer programs. Therefore, according to this provision of the Intellectual Property law, the computer programs are solely copyrightable and cannot be protected as an invention.
It must be observed that only if a computer program is a technical solution, it can be patented in Vietnam. Therefore, a computer program may be patented if it produces a technical effect that goes beyond the conventional physical interactions between the program and computer hardware on which it is run and processed. The experts in the field shall be obliged to make their own evaluation about whether the application shows a particular solution to a problem or not.
Conclusion
It is essential to understand the distinction between protection granted under copyrights and patents. A copyright protects the expression of an idea, not the idea itself, whereas the patents safeguard the inventions. The forms are not mutually exclusive but at the same time are distinctive as well. The Intellectual Property law of Vietnam does not prohibit the registration of any IP object under two or three distinct regimes. Registration of a computer program under copyright and patent can be costly for a particular IP owner at the beginning but if considered, for a longer term, it can be for a long-term economic and legal perspective. If both the protection schemes are chosen for a computer program, it is advised that the copyright filing is not done before the patent protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
