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Patents and its brush with technology

May 18, 2021
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Patent

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This article is written by Gurpreet Singh, from the Faculty of Law, Delhi University. This piece takes you through the basics of patent law and widening of patent law through the case of Allani Ferid v Assistant Controller of Patents and Designs.

Introduction

What comes to your mind when you hear the Name Elon Musk? Surely it is not XAeA-12! It must be an entrepreneur, celebrity, Successful, an inventor. Ah! If one is an inventor, their biggest concern is that their inventions would be copied by others, So to protect innovation, a branch of law developed going by the name of patent Law. This piece takes you through the basics of patent law and its changing horizons in India due to a decision rendered in Allani Ferid v. Assistant Controller of Patents and Designs.

What are Patents? 

Patents are basically the monopoly rights granted to the inventor to reap the benefits of their own innovation. For example, You created the light bulb! You would want it to attribute it to your name and reap the benefits of your hard labour. You would prefer to be known for the invention that changed the world. So, to encourage individuals to invest or bring a change in the way homo sapiens work, patents are granted. To warden, the protection of law certain conditions need to be fulfilled for the grant of Patent that is as follows 

History of patents in India 

In the late part of the 19th century with the industrial revolution, inventions in the field of machinery, apparatuses were increasing and inventors demanded that their work should be protected. To safeguard the inventions, British colonizers enacted the Indian Patents and Designs Act,1911. With the due passage of time, substantial changes in the social structure, political and economic sphere in the country demanded reforms. So to address the concerns, the Government appointed the Patents Enquiry committee in 1948 to review the working of Indian Patent law.

The committee submitted its report in 1950. A bill by the name of Patents Bill,1953 was introduced in the parliament, but unfortunately lapsed due to the dissolution of the First  Lok sabha. In 1957, the task to review patent law was handed to Justice N.Rajagopala Ayyanagar. The Judge submitted his report on the subject matter in September 1959. After that, a patent bill was introduced in the parliament in 1965 based on the recommendations of the judge. But it also eventually lapsed. Then finally on 19th September 1970, a patents bill was passed in the parliament to amend and consolidate the law relating to patents. The Act was later amended in 2005 to incorporate changes that were the need of the hour at that point in time meeting the requirements of technology. 

Unpatentable material

Section 3 and 4  of the Indian Patent Act, 1970 provides a list of things that cannot  be patented that is as follows:

Process grant of a patent 

  1. Present your idea or invention in Writing – Depending on when are you applying your invention (if ripped) or an idea in progress, they should be presented in writing containing all details such as the field of invention and how does it work and how will it be applicable in the industry.
  2. Pictorial Representation -It is essential to present your invention in pictorial form for a better understanding of the invention, so that decision about the grant of a patent can be taken judiciously. 
  3. Eligibility of Grant of Patent – Patents are not granted on every invention. It is essential to make sure that your invention falls under the category of inventions that is patentable. 
  4. Credibility Criteria – Next it is important to make sure that your invention meets the criteria of novelty, applicability, and up-gradation required for grant of patent.
  5. File Patent Application -Next step is to file for a grant of a patent that depends upon the stage of development one is currently standing at. If one is at the preliminary stage of development, one can apply for a provisional patent, and that grants time to the inventor to present invention in the next 12 months, If one is at the final stage of development then a final application for the grant should be filed. 
  6. Publication – Once full details are being provided, it tackles 18 months from the date of filing for publication. If you wish to undo the 18 month waiting period, you have to pay the prescribed fees. 
  7. Examination of the Patent – The patent application is scrutinized and it is made sure that prior art available on the subject matter is not similar to that of the prosecution. The process of analyzing everything before the grant of a patent is known as patent prosecution. 
  8. Respond to the objections – If any objections are received after the examination of the patent, it the duty of the applicant to allay those objections in consultation with the patent agent. 
  9. Objection Clearance – The patent officer and the applicant ensure that all objections raised are cleared and the applicant has had a fair chance to prove his point.
  10. Grant of Patent – When all requirements are met, the application is sent to the grant and when the patent is being granted, it is published in the patent journal. 

Allani Ferid v. Assistant Controller of Patents 

Brief overview 

The Petitioners applied for a patent regarding an improvement in the search mechanisms via computers and it was rejected by the patent board invoking Section 3(k) of the Patents Act. It was contended by the petitioners that improvement saved data and provided better search results to the consumers having an effect of improvement over the previous technology. 

The law in picture 

Section 3(k) of the Patents Act prohibited the grant of patents regarding computer-related inventions until the late 1990’s when a parliamentary committee recommended certain amendments and permitted patents in respect of computer-related inventions. The recommendations saw the light of the day when the Act was amended in 2002 by the parliament. The amended section 3(k) Patent Act reads as follows 

a mathematical or business method or a computer program per se or algorithm”. It was clarified by the Committee that the words per se are being added to the provision to grant patents to computer-related inventions. The committee also remarked that “Across the world, patent offices have tested patent applications in this field of innovation, on the fulcrum of `technical effect‟ and “technical contribution‟. If the invention demonstrates a “technical effect‟ or a “technical contribution‟ it is patentable even though it may be based on a computer program”. With these remarks, the committee was of the opinion that Indian law is now on par with European Union law, which will result in computer-related inventions will be provided patents if they produce a technical effect.

Guidelines Issued in 2013 

A set of guidelines were issued in 2013, revised in 2016 and then in `,due to growing confusion over the patentability of computer-related inventions. The Guidelines provided that the following can be construed as having a technical effect:

Precedents Available 

Brief facts of the case 

The IPAB Order

Conclusion

With fast pacing technology and the advent of modern life. Inventions are about to take place in the computer realm. With Artificial intelligence, blockchain technologies staring at us in the near future, It is high time for our Courts to take a definitive stance regarding the essence of technical advancement so that inventions can be promoted with an assurance that their rights over computer-related inventions would be protected.

References 


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