The concept of protecting intellectual properties arose from the need to protect a person or entity’s creations. Intellectual Property Laws are designed in such a way that they not only protect these creations but also help the creator ensure that they seek appropriate rewards for them by commercializing or monetizing them.
Patents are one of the most complex types of intellectual property since they protect inventions. Inventions could be of any type including technological, software, scientific, hardware or mechanical, electrical, etc. Patents have a simple concept of what can be patented and what cannot be patented. It is, in fact, mostly a three-step process. Any invention, which has an “invention” step can be patented. This invention step or feature ought to be something that is not obvious to someone skilled in the industry and must be “novel”. And such a feature should also have a utility value and should not merely be a design or cosmetic change or addition.
Since it is impossible to define what CAN be patented exactly, legislations have gone ahead to define what cannot be patented instead. And while the decision of what can or cannot be patented lies with the Patent Office, there are certain direct and outright exceptions or disqualifiers. These disqualifiers have been essentially put into place to ensure that no inventor misuses their right to patenting their “invention” if the same can be used for public interest, the greater good or is merely an addition onto something that already exists or has been “invented”.
As per the Indian Patent Act, the following innovations are not patentable in India:
- An invention that is frivolous or trivial;
- An invention that claims anything obviously contrary to well established natural laws;
- Discovery of a scientific principle, or formulation of an abstract theory;
- An invention whose primary goal or intended use is contrary to law or morality or is injurious to public health;
- Discovery of a new form of a known substance, without enhancement of the known efficacy of that substance;
- Discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus, unless such known process results in a new product or employs at least one new reactant;
- A method of agriculture or horticulture;
- Inventions relating to atomic energy;
- Any process for the medicinal, surgical, curative, prophylactic, or any other type of treatment of people or animals or other creatures;
- Plants and animals in whole or any part thereof other than microorganisms;
- A mathematical or business method or a computer programme;
- A literary, dramatic, musical, or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions, which would essentially be a copyrightable material instead;
- An invention which in effect is traditional knowledge or is based on the properties of traditional knowledge.
Are software patentable?
One of the most important questions that arise in today’s world is whether softwares are patentable? Should one protect their software technologies or products through a patent or a copyright application?
The answer is simple, while the Patent Act in India, prohibits patenting algorithms per see, a technology product per see can be protected. Indian Patent laws allow for an invention to be protected as a process or a product. Hence, if a software technology product can be defined as a process or a product, it can be patented.
Software can also be copyrighted, to the effect that their source codes can be protected through a copyright application. However, since patent laws award a much stronger right to an invention, it is recommended to have a patent application filed in case the invention is patentable.
Can companies or entities file patent applications?
Yes. The law gives the right to all types of parties or entities or organizations to protect their inventions by way of patent applications. In fact, the law also considers a situation where the applicant could be a different entity/individual and the inventor could be a different entity/individual.
How to file a patent application in India?
In order to file a Patent application in India, one needs to:
- Have a detailed prior art search conducted – Prior art searches are essential because they help one understand and find out whether their product or process is patentable. It is basically a search to find the closest “prior art” or existing invention to the proposed invention. This process not only helps determine whether the invention is patentable but also makes the drafting of the specification (discussed in the next step) a lot easier and more comprehensive.
- Have a specification drafted: this document forms the most important aspect of your patent application as it defines what your invention is and states what your claims for protection are. Specifications are of two types:
- Provisional Specification: Provisional specifications are essentially provisional or preliminary specification which is only filed to protect the invention’s earliest date. A complete specification needs to be filed within 1 (one) year of filing of the provisional specification.
- Complete Specification: A complete specification is the final document filed during a patent’s filing process. This document contains the claims being made in the invention and ought to be detailed and comprehensive.
- Pay the government fee: The inventor has to pay a government fee as well which will vary, depending on the type of inventor.
- Keep the timelines in mind if a provisional specification is being filed first; a timeline of one year is provided to the applicant. In case the applicant fails to file their complete specification/ application within this timeline, the application will lapse.
Assignment of Patent:
Patents are assignable in a similar manner as Copyrights and Trademarks are. In fact, Patent assignment is found to be extremely common owing to the commercial utilisation and possible monetisation that can happen with patentable inventions.