The Pomegranate Series, Episode 6: The Merchant of Venice (Patents)

Around the time Bahlul Lodi was setting up the Lodi dynasty in India, the Venetians had already begun to grant a 10-year monopoly to their inventors for novel inventions. We’ve come a long way from 15th century Venice, but the deal is still the same. Limited monopoly is granted to an inventor in relation to his / her new invention. The reason why it’s different from copyright protection is because most often, the commercial value of an invention is much more than that of a creative work. A strong patent law is indispensable to foster innovation and to constantly incentivize private companies and governments who invest billions of dollars and hire the best minds to upgrade their technological armada.

Being a creation of statute, a patent is a monopoly right granted to an inventor for a new invention by the government of a country. Since IPRs are territorial in nature, a patent granted by the Indian Patent Office (IPO) is only enforceable within the national territorial limits. The monopoly is limited because the object of granting patent is to ensure availability of the specifications of the patented invention in the public domain after the expiry of the term of patent. Therefore a mere idea, which has not been fully disclosed to the IPO in the form of specifications, is not patentable in India (as in most other countries). In addition to the specs, the best mode to create (arrive at) the said invention must also be disclosed.

An invention may be an entirely new / better form of such pre-existing invention (state of the art) or it may be a new (more efficient) process of creating such technology; both the new invention as well as the new process, are patentable. The most primary right that a patent confers on the patentee (inventor) is the exclusivity to make, use and sell the invention. Secondarily, the patentee is also given the right to license out his / her invention to any other person so as to earn royalty for it. Not all inventions are protected by patent. Section 3 of the Patents Act, 1970 provides a list of things for which a patent is not granted by the government. The reason for making these exceptions is that an invention must pass the ‘Golden Quadrangle Test’ (no, they don’t really call it that) to be eligible for a patent.

Let’s take the Tata’s Nano® for example, which has around 37 patented inventions imbedded in the car. The IPO granted these patents after a thorough examination to confirm that the specifications submitted were not available / published in the public domain; and therefore the People’s Car passed the first test of Novelty. It was realized that even the persons skilled in the art of car-manufacturing (engineers or otherwise) could not replicate the patented technology in this car without having access to the complete specifications and the best mode to apply them. After passing this test of Non-Obviousness or Inventive Step, it was abundantly clear that the patented tech could be (and that Tata intended it to be) Manufactured. Last but certainly not the least; Tata was successful in showing that the patents sought were for technology that is useful to humankind, thereby passing the last test of Utility. There it is. Any person who comes up with such an invention which can pass all the four tests listed above, is eligible for a patent. But hey, if you do not want to get a patent while still wanting a monopoly over your invention, fret not; for trade secrets are best kept forever! (Watch the previous episode to know more)

On a slightly socialist note, even though inventions are strongly protected by Patent law, it also empowers the government to grant a compulsory license to an aggrieved applicant when (among other reasons) the patentee refuses to license it on Fair, Reasonable and Non-Discriminatory (FRAND) terms. So inventors are not empowered to hoard their technology and obtain a patent without being reasonable towards its competition in the market. Be that as it may, I would still advise you to be FRAND-ly towards the geek fraternity; you might just have to secure a patent for these people!

Therefore we now know that people who invest their time and money into creating something useful and functional are fiercely protected by Patent law. But what of those create things which appease only to the eye? Watch the next episode of The Pomegranate Series to find the answer to that question and get a chance to meet the most stylish among all IP.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

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