Some time ago, the proposal of safeguarding intellectual property and particularly making the use of patents to acquire such safeguard was unfamiliar to the communications and the infotech field. At present, patents make an essential strategy in the corporate master plan of many against the far-reaching rivals in the communications and the infotech industry.
What is a Patent?
A patent is a safeguard rendered by a national government for an innovative idea or invention. This safeguard debars others from creating, operating, or trading innovation for a term of up to 20 years.
This implies, when a patent is received for an inventive plan/idea, the powers that be, renders a sole right for the innovative idea to prevent others from creating, utilizing, trading or selling patented innovation without the consent or permission.
In financial expression, a person would get substantial financial advantages for patented innovation by:
- Authorizing patented innovation to other business and earn royalties on a regular basis as per agreement
- Creating a trade related to the patented innovation and preventing others from duplicating it, so there would be no one competing with the same commodity or service, and hence can earn substantial gains.
- Patent for the invention may also aid in increasing funds for trade.
- Transmission of all entitlement of patented creation to other businesses, collecting substantial funds by the trading of patented innovation.
Current Indian Position
The current Indian stance in relation to Patent Law is regulated by the conditions of the Patents Act, 1970 as altered by the Patents (Amendment) Act, and Patents Acts Rules, 2006. The Head Office is situated at Kolkata and its divisional offices are situated at Delhi, Mumbai, and Chennai. Patent structure in India is regulated by the Controller General of Patents, Designs, Trademarks and Geographical Indications. Every office has control for accepting patent requests and is authorized to trade in with all elements of the Patent Act. The Authority/ jurisdiction for applying for the patent request contingent upon:
Indian claimant(s): assessed in accordance with formal dwelling, the establishment of work of the claimant or where the innovation was created. Foreign claimants(s): assessed by the location for service in India.
The Act describes what an invention is, with the compliance of the sections of TRIPS. The yardstick for patentability of an innovation/ invention is originality, innovative step, and commercial applicability.
What is an Invention
Section 2(1)(j) of the Patent Act, 2005, states about “invention” as a new commodity or as an operating process including an innovative measure and up for commercial application.
An innovation/ invention signifies a systematic solution to an issue, generally practical in characteristic. A new commodity or procedure or alteration of an already subsisting one eligible for being an innovation if created through human involvement, as against mere exploration of something preexisting in nature.
What is Patentable?
An innovation/invention must secure the required elements to persuade the patentability yardstick. These are as follows:
Patentable essentials requirements: The Patents Act does not record the subject matter that is patentable. However, it does state the content that is not patentable. This is mentioned under Section 3 of the Patents Act and the subject matter is as follows:
For any property or an innovation to be eligible for a patent, it must fulfill three fundamental conditions:
- It must be new, original and in a class of itself. This explains that the certain innovation must be novel and there should not be any surviving evidence of it.
- It must be special. An enhancement in the present mechanization by any person cannot be patented
- It must be distinctive. It should further increase value to the life of the people, and it must not aid or assist the usage of illicit aspects or must not be utilized for any felonious reasons.
- Few kinds of innovations (or explorations) like Albert Einstein’s formula for relativity or Issac Newton’s law of gravity is not eligible for this. Mostly, no one can acquire a patent on a divine law or any factual rules.
- Following are each explained patentability benchmarks to assess the invention idea to be eligible and whether we should proceed with patent application.
Originality or newness requirement
Innovation is called to be new if all aspects of an application of the innovation are not presented by a preexisting work which is made known or utilized or published.
Under an inventive step, it requires to detect characteristics of innovation that is either scientifically ahead or it is financially important or both, when it is set side by side to the latest or already breathing principles such that innovation becomes non-obvious to any individual adept in the art.
Exhibits characteristic of the innovation, incurring enhancement which is practically technical in characteristic as set side by side to the already existing work.
An individual adept in the art
An individual who has basic expertise from the domain. For example, if the innovation is linked to technological apparatus an individual adept in the art would be from a technological framework. If there are various types of machinery utilized in the innovation, then an individual adept in the art is presumed to have all the understanding (that is present and known to the public) from the types of machinery included. This is to detect the creativeness or uniqueness of the invention. This is known as the non-obviousness test.
And one of the routes to be eligible for the non-obviousness test of patentability is stating and establishing to the examiner that the creation is resolving the key issues in a field. Indicating that it is imperative to resolve the long-standing issue, also stating about subsisting previous patents and art testimonials who did attempt to solve but only to some extent and not as a whole.
This is not the occupation of the creator to work on this, by rule this is a job of a patent agent or patent attorney employed on such an invention. An accomplished patent agent would quiz for needful information and practical aspects of the creation and use such details and data of the invention while registering a patent application, rendering a good chance for the patent request to retain through assessment level till the rendering of the patent.
Commercial Application or Utility
Section 2(1) of the act, “capable of industrial application”, regarding an innovation, signifies that the innovation is adept of being utilized in industry. This is also known as adequacy, a patented innovation should be capable to manufacture on an extensive scale that is it could be made, utilized, and repeated.
Capable of industrial application, which also means it need not be produced in huge numbers right now but has adequacy of commercial application in the near future. Normally, this patentability need for resourcefulness or commercial application is not much of an issue to prove.
Who can request for a patent in India?
A request application for a Patent for creation or invention may be created by any of the following individuals either by oneself or together with any other individual:
- Original and inventor in the first place
- Original and first innovator ‘s assignee
- Legal representative of deceased of original and innovator or his/her assignee
What are Non – Patentable Inventions?
Section 3 and Section 4 of the Patent Act is very arguable and is linked with the catalogue of barred aspects that are non-patentable that do not accomplish the conditions. Following are not the “inventions” under the meaning of this act:
Inventions that are inane and conflicting to natural laws.
Inventions that have an inane or frivolous purpose and are outrightly contrary to the natural laws, will not be categorized as an invention.
Creation conflicting with public morality
Innovations in which the foremost or purpose of the use or which leads to industrial exploitation of which could be conflicting to public order or morality (that is against the established norms of the community and is prohibited) or which leads to consequential compromise, serious to any person, plant life or animal or health or to the surroundings.
Thus, a device for housebreaking or a gambling machine cannot be granted a patent.
Inventions that are simply explorations of something that is already subsisting in nature.
The mere exploration of a general scientific rule or principle or the articulation of conceptual thesis or exploration of any alive or lifeless materials present in nature.
For instance, the simple exploration of a microorganism is not patentable.
Even though the notion of a patent is to protect the creator’s creation there are particular things that do not make it eligible to be patented according to the Indian law (section 3 and 5 of Indian Patents Act, 1970):
- Any measure of agriculture or horticulture
- Any procedure under the section of surgical, curative, medicinal, or other treatment of person, animals, or plants
- An update or exploration of anything that links to atomic energy
- Exploration of the unique machine, apparatus, or a procedure
A patent safeguards innovation and shows how things move, what it is about, what is the procedure, what they contain and how they are created. A patent renders the possessor the entitlement to stop others from creating, exhausting, trading, or doing business of the innovation without consent. A patent facilitates its owner with the entitlement to eliminate others from taking advantage of the patented technology. Patents are crucial to any such agencies to keep up their competitiveness. Through patents, agencies can eliminate their rivals from those spheres of the commercial industries where they have accomplished novel technology. These agencies spend huge amounts on research and development. Patents allow them to stop their rivals from openly duplicating that technology.
Moreover, patents may facilitate incorporation of the source of proceeds. Through authorization of their patent securities, many companies have encountered significant advantages and consequential proceeds. For example, it has been observed that IBM gains nearly $1 billion per year on its patent royalties. Advantage from patents facilitates a variety of merits to their possessors, some of which may be utilized to one corporation or another. Patents also ensure freedom of motility in the company’s field. For many companies, this freedom of motility can be phenomenally significant, especially being in a space with many rivals or in a space ruled by one player. Day by day, acquiring and safeguarding intellectual property rights is coming out to be a planned necessity for corporations. The basic notion of this structure is to promote the creators to protect their own innovation. Novels, films, and artworks cannot be patented. However, one can safeguard these virtues under the law of copyright. The law of patent is one part of the enormously huge legal field called intellectual property, which also involves trademark and copyright law.
- Indian Patent Act 1970-Sections”. ipindia.nic.in.
- About Us | Intellectual Property India”. www.ipindia.nic.in.
Student, Chanakya National Law University Patna
Nitisha Bhardwaj is a writer, speaker, and researcher. She has an affinity for International Aviation and Corporate Law. She is a creative thinker and seeks for balance. For any Clarifications, feedback, and suggestion, you can reach her at Nitishabhardwaj1@gmail.com