A patent is any innovator’s best friend. As an inventor, your greatest concern is to protect your invention from duplication and malpractice.
Not only do patents protect your hard work from being copied, they help you leverage your position for financial gain when you decide to commercialise your invention.
Applying for patents, however, is no easy job. It is a complicated and time-consuming process. However, the success of obtaining a patent at the end of this tedious process will overshadow all the challenges.
To maximise your chances of obtaining a pantent, you must be prepared well. First and foremost, you should be aware whether or not your invention is patentable. This is especially critical if you are a technologist working in any contemporary field of science that is not directly governed by existing patent laws. In such instances, it’s a good practice to know how existing laws can work in your favour.
You do not want your application to be rejected at the end of the arduous journey. Begin the journey by studying the patent criteria you need to meet for a successful application.
The 3 requirements for a patent
In India, patents are governed by the Indian Patents Act, 1970. Additionally, the office of the Controller General of Patents, Designs and Trademarks (OCGPDT) has issued guidelines for patenting Computer-Related Inventions (CRIs). These can be used in conjunction with the Copyright Act, 1957 for obtaining patents for inventions.
There are three major patent criteria that every inventor must meet in order to obtain a patent. These patent criteria determine whether or not your invention can be patented.
- Originality: The invention should be absolutely new. It should not have been disclosed anywhere else in the world.
- Ingenuity: The invention should be inventive and not obvious to a skilled person. This is defined in Section 2(ja) of the Patents Act as “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art”.
- Industrial application: Every new invention, in order to be patented, should have the potential to be used in an industry. In other words, the invention should have economic potential.
Another essential patent criteria is that the invention should not fall in the list of items that are not patentable according to the Sections 3 and 4 of the Indian Patents Act. To make matters more simple for you, here’s our take on what’s patentable and what’s not:
What can be patented in India
The OCGPDT defines patentable inventions as those relating either to a product or process that is new, involving an inventive step and capable of industrial application.
Simply speaking, any invention that fulfils these patent criteria can be patented. Examples include cutting edge technologies in the education sector or healthcare sector.
The catch, however, is the caveat on this definition. For an innovation to be patentable, it must not be a part of the list of items that are not patentable. Which brings us to:
What can’t be patented in India
The sections 2 and 3 of the Indian Patents Act have stipulated, in detail, all inventions that cannot be patented in this country.
This means that even if your invention satisfies the three requirements for obtaining a patent—novelty, inventiveness and industrial application—it may not qualify for a patent if the invention falls under any of these categories:
- if your invention is in contradiction to well-established natural laws or is impractical;
- The primary or intended use or commercial exploitation of the invention can be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
- Discoveries of scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature is not patentable;
- Discovery of a new form of a known substance, which does not result in enhancement of the known efficacy of that substance, is not patentable. Neither is the 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. The law considers salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall as the same substance, unless they differ significantly in properties with regards to efficacy;
- Any substance obtained by admixture resulting only in the aggregation of the properties of the original components is not patentable, neither is the process for producing such substances;
- Arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way is not patentable;
- A method of agriculture or horticulture is not patentable;
- The law does not treat any process for medicinal, surgical, curative, prophylactic (diagnostic, therapeutic) or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products as patentable;
- plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals is not patentable;
- A mathematical or business method or a computer program per se or algorithms is not patentable;
- Any literary, dramatic, musical or artistic work or any other aesthetic creation, including cinematographic works and television productions is not patentable;
- A scheme or rule or method of performing mental act or method of playing game can’t be patented;
- Any presentation of information can’t be patented;
- A topography of integrated circuits can’t be patented;
- Traditional knowledge by itself or as an aggregation or duplication of known properties of traditionally known components can’t be patented;
- Any invention relating to atomic energy isn’t patentable;
There are, however, ways to circumvent these stipulations in order to obtain a patent. For example, while algorithms can’t be patented, the CRI rules can be used to obtain a patent on the functionality of the algorithm. Another method of doing so is to be clear on the ownership of the invention. Since patent laws do not recognise artificial intelligence as owners of patents, innovators should retain the ownership to their name.
Final note: The existing legislation on patenting and copyrights have not evolved enough to keep up with technological advances. Therefore, ambiguity hangs over the patentability of the new inventions in these contemporary fields. Even as policy makers across the world work towards catching up with the latest inventions, you can use the existing requirements for obtaining a patent to their advantage.