Creativity of the patent in Vietnam

As society develops, the need for creativity and invention is increasing. To protect their creative achievements, the owner of the invention must request protection for their product. Accordingly, an invention will be protected in the form of a patent if it meets the conditions of creativity, novelty, and industrial applicability. Utility solution patents will be granted to products that are new and capable of industrial application. Both these forms differ only in one point, that of creativity. So what is the inventiveness of an invention? To answer this question, Viet An Law Firm offers an article on the creativity of the patent in Vietnam as below.

Legal basis

• The Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022.
• Circular No. 01/2007/TT-BKHCN details and guides the implementation of a number of articles of the Intellectual Property Law on industrial property.
• Circular No. 16/2016/TT-BKHCN amends and supplements a number of articles of Circular No. 01/2007/TT-BKHCN.

What is an invention?

According to the provisions of current intellectual property law, an invention is an innovative technical solution in the form of a product or process created to solve a specified problem by applying natural laws. Accordingly, invention is a process of creativity and research that is groundbreaking and beneficial to society.

Why should a patent be registered?

Inventions need to be registered for protection for the following reasons:

• Registering for patent protection will demonstrate the owner’s exclusive ownership of his or her invention. Accordingly, any intellectual product is a human product and has value. Therefore, patent registration is the best way to establish the owner’s exclusive ownership of the invention, thereby avoiding the unauthorized use of the invention.
• Patent registration is the basis for exercising rights to an invention. Based on that, the owner has the exclusive right to directly exploit the invention. In cases where the invention is not directly exploited, the owner has the right to license it to one or more businesses that wish to exploit that invention to collect money from this activity.
• This is the basis for claiming protection of patent rights. Patents in particular and intellectual property objects in general are always the target for infringement by many subjects in today’s increasingly fierce competition economy. Therefore, if not registered for protection can greatly affect the exploitation of rights to the owner’s invention.

Therefore, once an invention has been registered for protection, based on the protection title in hand, the owner can request the competent authority to handle acts of infringement of patent rights by other companies.

Conversely, if the invention has not been registered, it can lead to a long and intense dispute affecting the interests of the owner. This will be even more difficult when the opponent is quicker in registering for patent protection under their own name.

Patent protection conditions

According to the provisions of Article 58 of the Intellectual Property Law, in order to be protected in the form of a patent, an invention must fully satisfy three conditions:

• Inventions are novel;
• The level of creativity of the invention;
• Capable of industrial application.

What is the creativity of an invention?

The level of creativity or inventive nature of an invention is considered a decisive condition for whether an invention can be considered for exclusive protection or not. Pursuant to Article 61 of the Intellectual Property Law, there are provisions as follows:

• The creativity of the invention will be evaluated on the basis of comparison with technical solutions that have been publicly disclosed in the form of use, written description, or any other form in the country or foreign country prior to the filing date or, in the case of an invention entitled to priority, the priority date of that patent application.
• An invention that does not satisfy the inventive step and is not protected is an invention that contains only a negligible improvement in a similar technical area or signs that make a difference that can be inferred from existing things by people with average knowledge in the field corresponding to the invention.

In Section 25.6 Circular No. 16/2016/TT-BKHCN amending and supplementing a number of articles of Circular No. 01/2007/TT-BKHCN evaluates the level of creativity through the following factors:

Minimum information source required

When assessing the inventive step of an invention, it is necessary to at least conduct a search of information in the required source but not limit the search to that minimum source. The required source of information can be understood as follows:

• All patent applications received by the National Office of Intellectual Property have the same classification index as the classification index of the subject matter stated in the application being evaluated, calculated up to the third-ranking index, and have a publication date. announced earlier than the filing date or priority date of the application being examined.
• Patent applications or patent protection titles published by other organizations or countries within 25 years from the filing date or priority date of the application being examined (in case the application is entitled to patent priority rights) will be stored in the patent database available at the National Office of Intellectual Property and other information sources prescribed by the National Office of Intellectual Property.
• Where necessary and possible, the search is extended to the national database on science and technology.

Examination of the level of creativity of the patent in Vietnam

The assessment of the creative level of the technical solution stated in the application is carried out by evaluating the basic distinctive signs stated in the scope of protection to be able to draw the following conclusions:

• Whether the material differences are considered to have been disclosed in the required minimum information source.
• Whether the set of fundamentally distinct signs would be considered obvious to a person with average knowledge of the relevant technical field.

For a point in the scope of protection, an invention is considered to have an inventive level if the inclusion of a distinct essential sign in the set of fundamental signs of the invention is the result of an inventive activity. creation that is not the obvious result of common knowledge in the relevant technical field.

In addition, in the following cases, corresponding to a point within the scope of protection, the invention will be considered to have no inventive step if it falls into the following cases:

• The set of fundamentally different signs must be obvious, that is, any person with average knowledge of the relevant technical field should know that to perform the intended function or to achieve the stated purpose. It is necessary to use that set of signs and vice versa, when using that set of signs, it is necessary to achieve the purpose or perform the corresponding function.
• A set of fundamentally different signs that have been disclosed in an identical or equivalent form in one or several known inventions in the stated mandatory minimum information source.
• An invention is a simple combination of known inventions with function, purpose, and effect as well as a simple combination of function, purpose, and effect of each known technical solution.

If you need advice on intellectual property law, trademark protection, or patent protection, please contact Viet An Law Firm for the best support.