What is Invention? What are the conditions for protecting the Invention?
I. What is invention?
According to article 4, Law on intellectual property 2005,
“Invention means a technical solution in the form of a product or process which is intended to solve a problem by the application of natural laws.”
A technical solution may fall into one of the following forms:
- Products in the form of objects, e.g. tools, machines, equipment, components, circuits, etc., are represented by a collection of information identifying an artificial product characterized by signs. (specification) of a structure, that product functions (utility) meet certain human needs.
- Products in substance form (including single substances, compounds, and mixtures), ex: materials, materials, foodstuffs, pharmaceuticals…, in order to meet certain human needs; or products in the form of biological materials, ex: genetically modified plants/animals…, which is represented by a collection of information about a product containing genetic information modified by human action, capable of reproducing itself or
(ii) Process or method (production process; diagnostic, forecasting, testing, handling methods…) is represented by a set of information that identifies how a particular process or process is carried out, characterized by signs (characteristics) of the order, participants, measures and means. perform operations to achieve a certain purpose.
II. Conditions for protecting Invention
According to article 58, Law on intellectual property 2005, there are three conditions for protection the invention including:
- Natural creativity;
- Industrial application
1. What is Novelty?
According to article 60, Law on intellectual property 2005, The invention is considered to be novel if it meets the following conditions:
– An invention shall be deemed novel if it has not yet been publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application
– An invention shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret
– An invention shall not be deemed to have lost its novelty if it is published in the following cases, provided that the invention registration application is filed within six (6) months from the date of publication:
- It is published by another person without permission from the person having the right to register it as defined in article 86 of Law on intellectual property 2005;
- It is published in the form of a scientific presentation by the person having the right to register it as defined in article 86 of Law on intellectual property 2005;
- It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it as defined in article 86 of Law on intellectual property 2005.
As such, the invention is considered to be novel if it has not been publicly disclosed to the public in the form of use, written description or any other form. In other words, the invention must be completely new, never before known
2. What is Creativity?
According to article 61, Law on intellectual property 2005, the Creativity is:
“1. Inventions are considered to be inventive based on technical solutions that have been publicly disclosed in the form of use or written description or in any other form at home and abroad prior to the submitting date or the privilege date of the patent application if those applications entitled to privileges; or the invention is an innovation and cannot be easily created by a person with average knowledge about the corresponding technical field.
2. The technical solution which is an invention disclosed in accordance with Clause 3 and 4, Article 60 of Law on intellectual property 2005 which must not be used as a basis for evaluation of the level of invention.”
As such, creativity can be understood as the result of an idea that creates newness and benefits in the invention but does not arise explicitly from the current technical level for a person with common skills (average level) in the relevant technical field
3. Industrial designs which are susceptible of industrial application
According to article 62, Law on intellectual property 2005
“An invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.”
Thus, according to the above provision, it can be seen that the technical solution mentioned in the invention is considered to be industrially applicable if it meets the following conditions:
– The object must be manufactured or used in industry; “Industry” is understood here in a broad sense to include manufacturing, transport, healthcare, fisheries, and livestock industries
– The information about the nature of the object, along with instructions on necessary technical conditions, must be presented in such a clear and complete manner that the average person with adequate knowledge of the technical field maybe do it; and
– The manufacture or use shall be reproducible with a stable result and identical to the result stated in the invention description