Gambling inventions in general have been rejected in Vietnam based on Article 8.1 of the Law on Intellectual Property:
“[The State] recognizes and protects intellectual property rights of organizations and individuals on the basis of harmonizing the interests of intellectual property right holders and the public interests; does not protect intellectual property subjects contrary to morality, ordre public, prejudicial to national defense and security.”
Support for the rejection is Article 321 in the Criminal Code which specifies for gambling to be an offence and which is in Item 4 of “Offences against ordre public” of the Criminal Code.
Vietnam is a member of the World Trade Organization (WTO), and therefore, should comply with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). In some cases where the patent applications for gambling inventions were refused, the applicants have requested the Intellectual Property Office of Vietnam (IPVN) to consider Article 27.2 of TRIPs:
“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”
Where the exclusion should be necessary to protect ordre public, not merely because this is due to a prohibition by the domestic law like said Article 321 in the Criminal Code.
There is no definition of “ordre public” in TRIPs. In the IPVN’s recent Decision on appeal settlement No. 2676/QD-SHTT dated 14 July 2020 for the invention “Systems, methods, apparatus and user interfaces for gaming and wagering“, the IPVN’s position in this regard is that not only gambling has a negative impact on the gambling player and his family, but also gambling is the reason for social crimes and other offences, and therefore, the refusal to protect this matter is necessary to protect ordre public and is consistent with TRIPs.
An open question is why Vietnam is prohibiting gambling and considering the same detrimental on the society, while in many other countries, gambling is not prohibited.
In fact, Vietnam permitted some companies to do a few kinds of gambling businesses as a test, and as a result, then issued Decree No. 06/2017/ND-CP in 2017 permitting some gambling businesses with strict controls. And recently, some lawyers have raised the issue that the State should respect the right of people to spend their own money (for gambling), and therefore, should remove Article 321 from the Criminal Code. To this end, it is expected that in the future, gambling will not be prohibited like many other countries as well as gambling inventions will be patentable in Vietnam.
By Nguyen Duc Thang and Van Thuy Linh
Patent Department – INVESTIP IP LAW FIRM