Patent means a technical solution in the form of a product or a process that is intended to solve a problem by application of laws of nature1. In most countries, a “patent” is described as a solution to a technical problem. A technical problem may be old or new, but a solution thereto to be qualified as a patent must be novel. Unlike a discovery (recognizing something that already exists in nature), a patent must involve human intervention. So what conditions an invention must meet to be granted a patent?
Being a patentable subject matter
Not all inventions are patentable. In order to be protected, an invention must be susceptible to patent protection. Depending on the laws of each country, the patentable subject matters may differ. According to Vietnam’s laws, the following subject matters shall not be protected as patents: scientific discoveries or theories, mathematical methods; schemes, plans, rules and methods for performing mental acts, training domestic animals, playing games, doing business; computer programs; presentations of information; solutions of aesthetical characteristics only; plant varieties, animal breeds; processes of plant or animal products which are principal of biological nature other than microbiological ones; human and animal disease prevention, diagnostic and treatment methods..
Being novel
An invention shall be considered “being novel” or “having its novelty” if the such invention is different from previous technical solutions, i.e. it has not yet been publicly disclosed through use or by means of a written description or any other form. However, an invention shall be considered having not yet been publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.
In addition, an invention shall not be considered to have lost its novelty if it is disclosed by the holder of the right to register such invention or another one who obtains information about the invention directly or indirectly from such, provided that the patent application is filed in Vietnam within twelve months from the date of disclosure.2
It is very important to do a patent search before filing an application because a search will help you know if your invention is novel or not, thereby showing that your invention is likely to be patented or not.
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Involving an inventive step
An invention shall be considered “involving an inventive step” if it constitutes inventive progress and cannot be easily created by a person with average knowledge in the relevant technical field (not obvious) compared to known technical solutions. This is difficult to be explained and applied and depends on the subjectivity of the examiner during the invention examination process. In case the solution does not involve an inventive step eligible for patent protection, such a solution can also be granted a utility solution patent.
Being susceptible to industrial application
The patented invention must be possible to realize mass manufacture or production of products or repeated application of the process that is the subject matter of the invention and to achieve stable results. That is, the invention must take the actual shape of a new tool, device, product, material, or substance, or a specific process or method of operation, and yield stable results.
An invention must satisfy all the above conditions to be granted a patent. Patent registration is not always the appropriate solution for businesses. The lack of understanding of the conditions and regulations on patent registration may lead to the loss of the invention’s novelty, thus creating opportunities for competitors to take advantage of the invention. Therefore, enterprises should consult professional service organizations before making public disclosure and register for patent protection in order to protect their interests.
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