The world today is the world of information technology. Every day, hundreds and thousands of new software are created by computer programmers around the world to help serve and develop people’s lives. Regardless of whether it is the system software, application software, translation software, etc. to closed source software, open source software, they all fall under the category of computer program software. Therefore, when an individual/organization spends a large amount of time and money inventing some unique software, they will want to get full ownership of that software and even profit from it. So, how do you conduct a software patent registration?
Software is a set of programs that work with hardware to run a computer. It is a collection of instructions or data that direct a computer on how to work. The software performs its functions by sending instructions directly to the hardware or providing data to serve other programs or software. The task execution can be automatic or follow the input information and data.
Software (computer program) is a type of work.
Clause 1, Article 22 of Vietnam’s Intellectual Property Law clearly states the definition of a computer program:
A computer program means a set of instructions that are expressed in form of commands, codes, diagrams, or any other form and when incorporated in a device-readable to computers, capable of enabling such computers to perform a job or achieve a designated result.
Computer programs shall be protected like literary works, irrespective of whether they are expressed in form of source codes or machine codes.
In addition, Clause 2, Article 59 of the IP Law also stipulates:
The following objects are not protected as inventions:
1. Scientific discoveries or theories, mathematical methods;
2. Schemes, plans, rules, and methods for performing mental acts, training domestic animals, playing games, doing business; computer programs;
Thereby, the computer program is one of the objects not protected under the name of invention.
So, according to the above provisions of the Intellectual Property Law, computer programs are not subject to protection in the name of inventions. So, what conditions does computer software need to meet to be patented?
According to the regulations on examination of invention registration applications (issued together with Decision No. 487/QD-SHTT dated March 31, 2010):
Although a computer program falls under the category of subjects that are not protected in the name of an invention, if the object of the claim is of a technical nature and is indeed a technical solution, intended to solve a problem technique by a technical means to create a technical effect, it can be protected as a patent.
Example: A data processing operation controlled by a computer program that can theoretically be performed equivalently by special circuits, and the execution of the program is always accompanied by physical effects such as electric currents, such ordinary physical effects by themselves are not sufficient to make the program technical. However, if a computer program, when run on a computer, produces a technical effect other than these normal physical effects, then that program is likely to be protected as a patent.
Thereby, in cases where the subject of the claim has a technical character and is indeed a technical solution, the computer software can be patented.
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