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

Intellectual property experts from Tilleke & Gibbins were engaged by ARISE+ IPR, a regional support program funded by the European Union and implemented by the European Intellectual Property Office, to craft a series of IP enforcement guides for Southeast Asian countries, aimed at raising local awareness of the importance of IP protection. The five-year, EUR 5.5 million ARISE+ IPR program supports regional integration through IP cooperation and aims to upgrade national IP systems for creation, protection, utilization, administration, and enforcement to be in line with international best practices and standards and the strategic objectives of the ASEAN Intellectual Property Rights Action Plan 2016-2025. The guides were developed by Tilleke & Gibbins’ lawyers in cooperation with the IP offices of each participating country, and cover issues related to trademarks, industrial designs, and geographical indications. Each guide was produced in a compact leaflet form in English as well as the local language, and is considered an official publication of the respective national IP office. The guides can be accessed from the ARISE+ IPR site (under “Leaflets, brochures and booklets”), or by clicking on the links below: Cambodia: English | Khmer Indonesia: English | Bahasa Indonesia Thailand: English | Thai Vietnam: English | Vietnamese

The era of Industry 4.0 has led to a dramatic increase in corresponding computer program invention patent filings in Vietnam. However, the current patent examination guidelines for inventions related to computer programs are quite brief and vague, which inevitably causes difficulties for patent examination. Therefore, in 2021, the Intellectual Property Office of Vietnam (IP Office) considered the necessity of amending the patent examination guidelines for inventions related to computer programs. Currently, a computer program is excluded from patentability under Article 59.2 of the Law on Intellectual Property (IP Law). However, according to Article 5.8.2.5 of the patent examination guidelines issued on March 31, 2010, as amended on December 31, 2020 (hereinafter referred to as the 2010 Guidelines), an invention related to a computer program is eligible to mature into a granted patent if the claimed subject matter has technical features and/or produces a further technical effect going beyond the normal interactions between the software and the hardware. From June 24 to December 31, 2021, the IP Office established a working group including members from the patent examination center, the legal and policy department, and experts from the Japan International Cooperation Agency (JICA) to detail the provisions under Article 5.8.2.5 in order to tackle the problem of “In what circumstances are applications related to computer programs patentable?” In December 2021, the preliminary guidelines for this problem were drafted in the form of an annex to the 2010 Guidelines. The group also consulted many local IP agents, state agencies, organizations, and individuals to improve the draft. On December 18, 2021, the IP Office organized an online meeting with IP agents and organizations to discuss the draft. Basically, the draft does not make any significant changes in comparison with Article 5.8.2.5 of the 2010 Guidelines, but it adds more details. The draft