To view this article in Vietnamese, please click here. In accordance with Article 59.2 of the Law on Intellectual Property issued in 2005, as amended and supplemented in 2009 and 2019 (“IP Law”), Vietnamese law currently does not recognize the protection of computer programs as inventions. However, in practice, if the subject-matter of an invention related to a computer program has technical characteristics and the program, when running on a computer, creates a further technical effect going beyond the usual physical interactions between a program and a computer, this subject-matter is likely to be protected as an invention. This condition is not codified, but is reflected in Article 5.8.2.5 of the patent examination guidelines issued in 2010, as amended and supplemented in 2020 – a reference document showing the guidance issued by the Intellectual Property Office of Vietnam (“IP Office”). Currently, at the formality examination stage, these “technical” conditions for inventions related to computer programs are quite easy to meet as it is only necessary to show that the subject-matter is a “Method performed by a computer for a purpose …”, “Processing apparatus…”, or “Computer-readable storage medium storing a program to perform the method…”. In the substantive examination stage, however, the “technical” condition is further scrutinized through the assessment of technical features stated in the subject-matter to determine whether the interaction between the program and the computer creates a further technical effect. The IP Office often issues office actions on substantive examination results because the computer-related patent application does not solve any technical problem and does not produce a further technical effect going beyond the normal interactions between the program and the computer. On December 31, 2021, the IP Office added to the patent examination guidelines mentioned above by issuing an annex with specific guidelines for examining patent applications relating to computer programs. The annex provides detailed guidance on assessing “technicality” in both the formality and substantive examination stages, gives some examples of further technical effects, and outlines several types of subject-matters related to computer programs. Below are some interesting examples of further technical effects that a program can produce when running on a computer. Example 1: In addition to a subject-matter related to a computer program being executed by a computer, a corresponding computer program that executes features of the subject-matter will produce a further technical effect when running on the computer. For example, a computer program to implement the method of controlling an anti-lock braking system (ABS) on a car, or determine emissions by X-ray equipment. Example 2: If a computer program is designed on the basis of specific technical considerations about the internal operations of the computer on which the program is run, such as the program being adapted to a particular computer architecture, it can be seen as producing a further technical effect. For example, the computer program controlling an execution of a function or an internal operation of the computer, such as balancing a processor’s load or allocating memory, often produces a further technical effect. Example 3: Programs for low-level code processing, such as generators or compilers, are likely technical. However, a computer program for a non-technical purpose that requires less computation time than a known program for the same purpose will not produce a further technical effect. A subject-matter related to a computer program cannot be considered technical only because the computer program is designed so that it can be performed automatically by the computer. Specific Guidelines for Subject-Matter Types The last section of the annex provides an analysis of 10 types of subject-matters related to computer programs, explaining whether and when they can be protected. These types include those in which computer programs implement features related to: (i) mathematical methods; (ii) artificial intelligence and machine learning; (iii) simulation, design, or modeling; (iv) diagrams, rules, and methods of playing games; (v) business methods; (vi) information modeling, programming operations, and programming languages; (vii) data retrieval, formats, and structures; (viii) database management and information retrieval systems; (ix) information display; and (x) user interfaces. The guidelines for three of these are summarized below: Artificial Intelligence and Machine Learning Artificial intelligence and machine learning rely on computational models and algorithms with an inherently abstract mathematical nature. However, there are still cases in which subject-matters related to artificial intelligence and machine learning can be protected as inventions in Vietnam, for example. “1. Computer-readable storage medium comprising a computer program that powers the computer to output quantitative values of the reputation of a hotel based on textual data about the reputation of the hotel, in which: this program consists of the first neural network and the second neural network connected in such a way that the second neural network receives the output from the first neural network mentioned above; The first neural network mentioned above includes… weights of the second neural network above…; and program causes the computer to do…” In this subject-matter, the purpose of “output[ting] quantitative values of the reputation of a hotel” can be considered to be non-technical, for business purposes. However, the features in the claims identify a particular technical embodiment that goes beyond aspects of a mere business method. Therefore, from the aspect of pre-processing training data for machine learning, these features are considered to serve a technical purpose, and contribute to the technical characteristic of the present invention. Therefore, the above subject-matter can be protected as an invention. Information Modeling, Programming Operations, and Programming Languages Information modeling is a mental activity being considered non-technically. However, if an information model is intended to be used in the context of an invention to solve a particular technical problem, it may contribute to a technical characteristic of the invention. Features that determine how the model is actually stored (using relational database technology, for example) can also contribute technically. In a visual programming environment, providing specific graphical building blocks is a part of the programming language and makes no technical contribution if the only effect is to reduce the mental effort of the programmer. Providing specific programming

On December 30, 2021, Vietnam’s Ministry of Education and Training issued Circular No. 40/2021/TT-BGDDT promulgating the Regulations on Organization and Operation of Private Primary Schools, Secondary Schools, High Schools, and Multi-level Schools (Circular 40), which took effect on February 14, 2022, replacing Circular No. 13/2011/TT-BGDDT. Circular 40 sets forth provisions for the organization and operation of private primary and secondary schools, including regulations on school organization and management; teachers, administrators, staff, and students; facilities, finances and assets; inspection, examination, and accreditation of education quality, rewards, and handling of violations. School Board Circular 40 has replaced the term “Board of Management” of the school, which had previously caused much confusion and misunderstanding under Circular 13, with the term “School Board.” Similarly, to avoid any confusion and inconsistency, Circular 40 also has removed regulations on “members’ councils,” which would typically be subject to the laws on enterprises, but are not under the regulations on schools. The provisions related to the School Board, summarized below, are the most significant changes introduced by Circular 40. Establishment and Composition Circular 40 affirms that the School Board of a private high school is the governing body of the school. The members of the School Board of a private school comprise representatives of the investors and members within and outside the school who are elected or decided upon by a meeting of the investors, and recognized by the competent authority (e.g., chairperson of the district or provincial People’s Committee, depending on the level of the school). Any changes to the members of the School Board must be submitted annually to the competent authority for recognition. The term of the School Board is five years. In a new requirement under Circular 40, the School Board must have an odd number of members, with at least five and no more than 15 people. Rights and Obligations Under Article 7.4 of Circular 40, the School Board has the following rights and obligations: To decide on the school’s strategy, vision, and development plan, to submit to the investor’s or owner’s meeting for approval. To decide on the regulations on the organization and operation of the school, to submit to the investor’s or owner’s meeting for approval. To approve the plan on organizational structure and issues related to the organization and personnel of the school on the basis of the proposal of the principal; to recommend the addition or dismissal of members of the School Board; to propose the recognition or dismissal of the principal or vice-principal of the school, to submit to the investor’s or owner’s meeting for approval and to submit to the competent authority for consideration and decision on recognition. To approve the school’s educational plan; to supervise enrollment activities and the organization and implementation of activities according to the school’s educational plan. To supervise the implementation of resolutions of the School Board, the management of the school’s finances and properties, and the implementation of the democratic regulations in the school’s activities.  School Board Meetings Under Article 7.5 of Circular 40, meetings of the School Board are regulated as follows: Regular meetings must be held at least three times per year. A meeting is recognized as valid when at least three-quarters of the members, including the president, are in attendance. In necessary cases, at the request of the principal or more than half of the members, the president may convene an unscheduled meeting to resolve issues arising in the school. The School Board may meet by way of a written consultation. The School Board can invite representatives of other parties (who are not members) to attend School Board meetings when necessary. A resolution of the School Board is adopted and takes effect when it is agreed upon by at least two-thirds of the members present. School Board resolutions are publicly announced throughout the school. The threshold rates for requesting unscheduled meetings and the threshold votes for passing a School Board resolution are new provisions under Circular 40. Other Provisions Except for the new concept of the School Board, the organizational structure of a private school under Circular 40 remains similar to the previous organizational structure under Circular 13. The conditions and qualifications for the principal, vice-principal, teachers, administrators, staff, students, facilities, finances and assets of a private school also do not have material changes in comparison to previous regulations under Circular 13. There are, however, some changes to the provisions for the principal. The term of office of the principal is five years under Circular 13. Circular 40 further states that the term of office of a foreign principal will be in accordance with the term of his/her work permit and will not exceed five years. Circular 40 also provides that a person cannot concurrently serve as the principal of more than one private school.

New technologies and production processes in the food industry have led to novel foods becoming increasingly important to both food manufacturers and the consuming public worldwide. This is very much the case across a number of jurisdictions in Southeast Asia. “Novel foods” refer to new food production processes, foods, and ingredients that have not yet been commonly used for human consumption, so these innovative foods require safety assessments before companies can produce and market them. While rules for these safety assessments are already part of novel food regulations in several other jurisdictions—such as the novel food regulations in the United Kingdom and European Union adopted in 2003, and the major reform of food safety laws in the United States passed in 2011 under the Food Modernization Act—similar rules governing the assessment of novel foods are relatively new or yet to be introduced in many parts of Asia. Nevertheless, it is important to understand the laws and practices that apply to safety assessments and the process of bringing novel foods to market in jurisdictions in the region. This article provides some clarity in this regard by summarizing important practical information on novel foods and the relevant required safety assessments in Indonesia, Thailand, and Vietnam.   Indonesia Regulator National Agency for Drug and Food Control (NADFC); frequently referred to as BPOM (Badan Pengawas Obat dan Makanan). Relevant Measures BPOM Regulation No. 27 Year 2018 concerning Public Service Standards in BPOM; Decision of the Director of Processed Food Standardization No. HK.02.02.51.511.06.21.21 Year 2021 concerning Public Service Standard Directorate Processed Food Standardization Definitions General “food ingredients” are basic fresh or processed ingredients that can be used to produce food; novel food is any food ingredient not listed in BPOM’s positive list of ingredients. Official Fees None   Process and Timeline Before submitting an application for novel food safety assessment, the applicant or a representative should first consult with BPOM’s Directorate of Processed Food Standardization. This consultation can help the applicant identify the data requirements for submission. For obtaining approval of novel foods, applicants must submit the required items through the directorate’s online submission system. BPOM will then check the application to verify its completeness, and will contact the applicant within five working days either to confirm that the submission is complete or to direct the applicant to rectify any shortcomings. Once all requirements have been fulfilled, BPOM is to assess the application within 85 working days—or around 4–6 months in practice.   Required Documents The application requirements differ depending on the category of novel food. There are two main categories: Novel food substances, mixtures of substances, mixtures of food ingredients, or other ingredients Novel foods sourced from plants or animals Ingredient name(s) Ingredient specification Physicochemical properties Composition Production process Certificate of analysis Toxicity data Potential allergenicity Regulation or distribution in other countries Name of type of processed food (final food product) Purpose of adding ingredients Amount of ingredients added Composition of processed food Processed food production process Use or application of processed food Suggested consumption (if any) Ingredient name(s) Parts of plant or animal used Chemical and/or nutritional content of ingredients Ingredient specifications and composition Production process Certificate of analysis History of use as food Toxicity data Potential allergenicity Regulation or distribution in other countries Name of type of processed food (final food product) Purpose of adding ingredients Amount of ingredients added Composition of processed food Processed food production process Use or application of processed food Suggested consumption (if any) Thailand Regulator Food and Drug Administration (FDA) Relevant Measures Notification of the Ministry of Public Health (No. 376) B.E. 2559 (2016) Re: Novel Food Definitions “Novel food” is any substance used as food or food ingredients that either has been used widely for human consumption for less than 15 years based on scientific or reliable evidence, or has undergone a production process not currently used, where that process gives rise to significant changes in the composition or structure of the food that affect their nutritional value, metabolism, or level of undesirable substance Official Fees THB 3,000 (approx. USD 90)   Process and Timeline Seeking approval for novel foods consists of two stages. Novel food safety assessment registration In this stage, the applicant submits safety data to one of four safety assessment organizations accepted by the FDA. The maximum or estimated duration of this step depends on the organization: Bureau of Quality and Safety of Food, Ministry of Public Health – 95 business days; National Food Institute, Ministry of Industry – 93 business days Thailand Risk Assessment Center (TRAC), Mahidol University – 90 business days National Center for Genetic Engineering and Biotechnology (BIOTEC) – 7–12 months Novel foods that contain any ingredient derived from a genetically modified organism (GMO) must undergo a BIOTEC review. Novel food safety assessment registration considered by the FDA To apply for the FDA’s approval of a novel food, the applicant must submit the letter from the safety assessment organization, along with other relevant documents, to the FDA via their online system. The FDA will consider the application and make a determination within 40 business days.   Required Documents General product and ingredient information Information on history of consumption as food Finished product and ingredient specifications Certificate of analysis Storage Production process, synthesis, or extraction method Basic information on chemical substances used in production Characteristics and recommendations for consumption Safety information, usually including three toxicology studies: 90-day subchronic toxicity study using rats Test for induction of gene mutations in bacteria (Ames Test, OECD Guidelines 471) In vitro assay to detect chromosomal aberrations (OECD Guideline 473), in vitro micronucleus assay (OECD Guidelines 487), or mouse lymphoma TK assay with colony sizing (OECD Guidelines 476) Nutritional data Results of safety assessments by international agencies or recognized countries.   Vietnam Regulator Vietnam Food Administration (VFA) Relevant Measures No specific regulations or guidance on novel foods and ingredients; however, both imported and domestically produced food products must comply with the Law on Food Safety as well as the following measures on genetically modified organisms

For years, an inadequate compensation mechanism has been a limitation in resolving IP infringement disputes in Vietnam through civil measures. This limitation was once again highlighted in an appellate trial at the Superior People’s Court of Ho Chi Minh City on February 21, 2022, in which the appellate court reviewed a judgment of the People’s Court of Ho Chi Minh City dated April 28, 2021. Outline of the Case The facts of the case are quite simple. A Ho Chi Minh City-based company that provides educational equipment was discovered by the Inspectorate of the Ministry of Culture, Sports and Tourism to be using, without authorization, a specialized computer program from a company based in the United States. The inspection agency issued a decision to administratively sanction the Vietnamese company. The sanction included a small fine of VND 30 million (approximately USD 1,315) and the forced removal of the infringing computer program, which the infringer readily complied with. Thus, the administrative aspect of the case was completed. The company behind the software then filed a civil case against the infringer at the People’s Court of Ho Chi Minh City. Among the plaintiff’s claims, the most important was the amount of compensation for damages: over USD 500,000, equivalent to the value of the full-module computer program that was found to be illegally installed and copied on the defendant’s computer. In fact, the plaintiff has sold software licenses for this full module version through resellers in Vietnam for the same amount. In addition to claiming compensation for damages, the plaintiff also demanded that the defendant make a public apology and pay an additional VND 300 million (USD 13,150) to cover the plaintiff’s legal fees. Court Judgments The first-instance court determined that the defendant had indeed infringed the IP rights of the plaintiff and required the defendant to make a public apology, but it rejected the plaintiff’s entire claim for damages on the ground that the plaintiff was unable to prove the damages it had suffered, such as loss of property, or decrease in income, profit, or business opportunities (Article 204.1(a) of the Law on Intellectual Property). Disagreeing with the first-instance judgment, the plaintiff appealed the case to the Superior People’s Court of Ho Chi Minh City. The appeal judgment upheld the first-instance judgment on February 21, 2022. The contents of both the first-instance and appeal judgments show that both levels of the court have a very conservative way of understanding and applying the law: They did not accept the plaintiff’s claim that the damages could be calculated based on the loss of business opportunities, namely the possibility to sell that very computer program to the defendant for an amount equivalent to the price other customers in the same market had previously paid. Proving Damages In practice, it is impossible to mechanically require plaintiffs to prove damages in the same way for different IP rights. If viewed only in terms of annual income and profits, it is entirely possible that both the income and profits of the plaintiff will not decrease but may even increase in the year the violation occurs. In addition, it is extremely difficult, if not impossible, to prove a direct connection between an increase or decrease in the income and profits of the plaintiff, which is a Nasdaq-listed business with billions of dollars in sales, and a single software infringement case in Vietnam. It is impossible to prove damages through profits gained by the defendant from the use of unauthorized computer program when the plaintiff has no access to the defendant’s financial figures and governance documents. It is also impossible to dissect in detail how much revenue or profit the use of a particular computer program has generated for the defendant among dozens of factors that can affect these indicators. The simplest and fairest approach, then, is to calculate the damages based on the value of the computer program itself, when it has been sold to similar customers. As a parallel, when a thief steals a luxury car instead of purchasing it from the dealer, the damage can be considered to be the price that consumers have paid for the car in the locality where the theft occurred. In fact, this approach is already prescribed by the current IP Law of Vietnam. Under Article 205.1(a) and (b), when a plaintiff can prove that an act of IP infringement has caused material damage, it has the right to request the court to decide the level of compensation based on one of the following grounds: The total material damage calculated as a monetary amount, plus the profits gained by the defendant as a result of the IP infringement if reduced profits of the plaintiff have not yet been included in the total material damage; or The licensing price for the IP object, on the assumption that the plaintiff had transferred the IP usage right to the defendant under a license agreement with a scope corresponding to the act of infringement committed. If the plaintiff has the right to choose the basis for compensation, then the court is obligated to consider this basis. In this case, the court made fundamental mistakes in its interpretation and application of the law, leading to a case with fairly simple details being tried in a wrong and completely different direction than reality would dictate. The plaintiff in this case is now requesting the Supreme Court to review the case according to cassation procedures, which aim to correct errors in the interpretation and application of the law in the effective judgments of lower courts. It is hoped that the correct perception of the grounds for compensation for damages in intellectual property cases will be properly considered by the Supreme Court. This article first appeared in Managing Intellectual Property.