Can Ideas Be Patented? - Patent - India

India:
Can Ideas Be Patented?
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Introduction
Patentability of an idea is one of the controversial topics
faced during the grant of patents. There is a very fine line
difference between an idea and an invention because every invention
is first an idea which later matures and gets patented. On the face
of it, it seems that there is no substantial way to protect an idea
under intellectual properties. Copyright protects literary and
artistic works but not innovations and patent protects noval and
unique inventions. Even though idea is first step towards an
invention and is of significant importance, there is no monetary
value attached to it, as per law.
Inventors prefer to have a non-disclosure or a confidentiality
agreement in the initial stage of their invention development in
order to protect their idea. However, such an agreement is not
binding any other person or organisation except the one signing the
agreement. So, if any third party, not being a party to the
agreement, discloses or uses the idea cannot be sued upon by the
inventor.
For an idea to be protected within the Patent laws, it is
essential that the idea should not be ambiguous and vague. Mere
idea cannot be protected but when the idea is concrete with enough
specificity and one has a strategy to describe it and its
functioning, making it an asset valuable enough to be protected,
then such an idea can be protected.
Herein after, various conditions and requirements for a patent
has been discussed concluding to provide situations where an idea
can be patented under Indian laws.
Patent
Patent is a kind of intellectual property that grants certain
legal rights to the owner of such IP against the unauthorised
selling, using, making or sharing of any of his work or invention
for a limited period of time. Patent, in other words, can be said
to be a license granted to the inventor giving him exclusive rights
over his invention, be it a process or a product, for a certain
period of time. Such an invention, however, should be a new method
of doing something or should provide with a solution to an already
existing problem. A patent is granted for a period of 20 years and
then the invention is made available in the public domain.
1. Utility Patent
It is the most common type of a patent and covers all new
inventions and significant modification and improved process or
product, having some utility. Utility patent is also referred as
'patent for invention.' The patent protects the rights of
the inventor over his invention by preventing any third party to
use, sell, or make the invention in question, without proper
authorization.
2. Design Patent
An exclusive right providing legal protectionto the ornamental
design of a useful product is granted under the design patent.
Design of a printer, shape of spoons, etc. are some examples that
can be granted design patent.
3. Plant Patent
As the name suggests, plant patent is the patent granted on
plants. New plants that are produced through asexual modes of
reproduction like cutting, vegetative propagation, etc. are
eligible to be granted plant patent. However, plant patents are not
granted in India.
Requirements of a Patent
Apart from being a new process, machine, or combination and
composition of different matters, for the patent to be granted it
is also required that the work be non-obvious and unique. Below
mentioned are essential criteria that the work must fulfil, in
order to be eligible for a grant of patent –
1. Novelty
For an invention to be patented it is essential that the work is
unique and novel. It should not have been made before, nor been
published or described in any patent application before. It is of
prime importance that the work in question should be different from
already existing creations in any way and has not been made by
anyone before. The requirement for the work to be new, unique and
not within the public domain is provided in Section 2 (l) of the
Patent Act, 1970.
2. Non-obviousness
As the term suggests, the work should not be obvious to the
society. It should not be such that could be easily predictable by
a person who is skilled in that art. An idea to combine two things
is not something on which a patent can be granted. For instance, an
idea of a pencil having an eraser at its other end, thereby
combining the two products, i.e. a pencil and an eraser, cannot be
patented. There has to be a uniqueness to such a combinationwhich
makes an obvious idea, a not-so-obvious invention. Sec 2 (ja) of
the Patent Act 1970 provides the need for an "inventive
step" for a work to be patented.
3. Industrial Applicability
Sec. 2 (ac) defines industrial applicability, according to which
a work must have a practical utility in industries in order to be
granted a patent. The invention should not be vague or exist in
abstract. It should be something having utility and practicability
for industrial purpose.
Even after fulfilling all the requirements for the grant of
patent, some inventions cannot be granted the patent in India, for
some specific reasons. Indian Patent Act, 1970, in its provisions
under Section 3 and 4 specifically mentions exclusion of certain
types of invention from being granted the patent, irrespective of
their fulfilling the patent requirement. Such inventions are
discussed, herein:
1. An invention contrary to the natural law: An
invention which violates morality of public at large and disturbs
public order cannot be patented. Likewise, an invention made to
ease gambling, theft, cyber-crimes or any criminal offence cannot
be patented. Similarly, an invention for commercial exploitation is
excluded from being granted the patent. Any invention that causes
or is likely to cause an adverse effect on humans, animals, plants
or environment is not to be patented. Only those micro-organisms
with genetically modification can be patented which do not fall
under Sec. 3 (b) can be granted patent.
2. Mere discovery: Mere discovery of a living
creature or any non-living substance found in the natural
environment or simply a discovery of a scientific principle shall
not be patented. Such a thing has not been created or invented, it
already existed in the environment from time immemorial, the fact
that such thing was found or recognised late, or use of such
substance was not known earlier, does not give it a ground to be
called an invention and likewise, cannot be granted patent.
3. Discovery of a new property of a known
substance: Patent is granted on a new invention and not on
an already existing creation. Mere finding of a new feature of an
already existing creation does not amount to it qualifying for
patent, this is for the fact that the creation already existed of
which a new feature has been discovered. Hence, nothing new has
been created or invented. Various forms of a known substance cannot
be granted a patent. However, it is only when such discovery
results in formation of new product or includes at least one new
reactant.
4. Arrangement or re-arrangement of known
substances: If two substances or devices or techniques
which are known and work independently as separate units are
arranged or rearranged for the functioning, such arrangement shall
not be patented. A torch if attached on a mug or television, will
not be patented. However, if the arrangement in question results in
a complete different use of the combined product, it is eligible to
be granted a patent.
5. Agriculture and horticulture: A technique
for cultivation and agriculture cannot be patented. For example, a
new type of soil, or a new technique to cultivate crops or food
grains cannot be granted patent.
6. Medical processes: Any medical, curative,
surgical or therapeutic process or treatment of humans or a similar
process or treatment for animals, which is been made to cure them
or prevent them from disease or to increase their economic value
cannot be patented. It is to be noted that processes in this case
is not considered as an invention and hence is not entitled to be
patented. For instance, process of a heart surgery or kidney
transplant is not patentable.
6. Plants and animals: Apart from the
micro-organisms but including the species, seeds and other
essential sexual and asexual modes and methods of reproduction and
propagation is not patentable.
7. Mathematical methods and computer programs:
Any kind of mathematical process, algorithms, a business method or
a computer program cannot be patented. A computer program can be
given a copyright as a 'literary or artistic work', but the
same cannot be patented.
8. Literary and artistic work: All types of
literary, musical, artistic or other aesthetic creation including
cinematography and television production which comes within the
ambit of the Copyrights Act, gets excluded from the scope of being
patented. Method of solving a puzzle and likewise, which is a
process or rule of playing a game or a mental act cannot be
patented.
9. Topography and traditional knowledge:
Presentations be it audio or visual is not patented. Topography of
any circuit cannot be granted patent. Traditional knowledge or
accrual of traditionally known components is not patentable, unless
such knowledge is modified to become a new process or product which
is unique and non-obvious.
10. Invention out of atomic energy: Section 4
of the Patent Act specifically excludes all the inventions coming
within Sec 20 (1) of Atomic Energy Act, 1962. This is done for the
safety and welfare of the public at large as if atomic activities
are allowed patent grants, it can be misused and the same can
result to be disastrous for people at large.
Can an idea be patented?
Section 10 of the Patent Act provides for some essential
specifications which must be provided in the application for
patent. One of such specification is the preamble. In case of a
provisional application, the preamble starts with 'the
following specification describes the invention' and the
preamble of the complete application reads as 'the
following specification particularly describes the invention and
the manner in which it is to be performed.'[3]With reference to this
it can be said that for an invention to be patented it is essential
that it has its practicability. Considering the same, it can be
said that, if an idea has the potential to be performed and one has
the method and process for its working, in this case, the idea has
the possibility of changing into an invention and thereby can be
applied for a patent through a provisional application.
For the reason of a mandate disclosure of best mode of
performance of invention to be mentioned in the complete
application, the idea can be described and filed for patent through
provisional application and subsequently one can work a way out
with a technique for its performance, within 12 months of filing
provisional application and then the complete application may be
filed. However, it is to be noted that on failure of filing
complete application within the stipulated period, the provisional
application may be rejected and be held invalid on the grounds of
insufficient description of the invention or the method.
For an instance, a person has an idea of making a mobile
application cyber threat warning system and has prowess to convert
the thought into an invention. In such situation, the person may
file a provisional application for grant of patent by describing
his idea of the application and later within a period of 12 months
may file a complete application also describing the mode and
process of performance of such invention. Failure of submission of
complete application may amount to invalidation of the
application.[4]
Conclusion
With reference to above discussion, it can be said that an idea
can be patented if it can later be transformed into an invention.
An inventor can file for patent for his idea initially, but he must
analyse his idea whether it has the capability to be performed or
not. If the idea lacks the capacity of performance, the application
shall be rejected and patent cannot be granted. Hence, for an idea
to be filed in a patent application, it is essential that the idea
must not be vague but substantive enough to become an asset later,
provided the mode of performance
of the invention is available and possible.
AI has become a buzzword in our lives, considering its role and impact. It has its pros and cons that is to be governed by law and order. This Blog delves into these issues, exploring AI's potential and future, especially in the context of Indian laws.
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