Inventions are protected by Patents. It is a legal monopoly granted to the owner of new invention, for a limited period of time. It can be granted for product as well as process.
Revati develops a new medicine to prevent AIDS. She has made an invention.
Patent is usually granted for the period of 20 years. This period starts from the date of filing of an application. This protection expires after 20 years and Patent enters in the Public domain and is available for commercial exploitation.
The Indian Patents Act, 1970 and the Patent Rules, 2003 are the primary legislations on Patents.
It regulates the grant, the operative period, revocation, and infringement of Patents.
To keep with the requirements of TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights) the Patents Act, 1970 was amended in 2005 and Patent Rules, 2003 were amended in 2006.
Conditions of Patentability
- Novelty – a product or process to be patented should be new. It should not be already published or in use or part of the existing knowledge.
- Non-obviousness – invention should not be obvious to the person skilled in the art to which invention relates.
- Useful and capable of industrial application
Rights of patentee
- To exploit the Patent
- To license the Patent to another
- To assign Patent to another
- Surrender the Patent
- Sue for the infringement
The basic reason why inventors/ companies go for patent protection is for the exclusive right that they hold over their invention for a specific period. But besides this obvious reason, there are other reasons why an inventor/ assignee would want to patent his invention.
Before we discuss the other reasons, let us first look at what rights do the term “exclusive right” of the inventor encompasses. Exclusive rights means the inventor wields monopoly rights over his invention, such that he can stop others from using his invention without his permission. This, interpreted in another sense, would mean he can gain royalties from persons who use his invention. Royalties is one reason why many inventors/ companies want to patent.
Besides this privilege of exclusivity, many companies use the patent system as a weapon of defense also, i.e. they patent to stay ahead of others besides being able to stop others from overtaking their progress.
Patents on Computer Programs
The Indian Patents Act, 1970 (Patents Act) does not protect any Computer program. It only falls within the ambit of literary works and accordingly protected under the Copyright law.
Section 3 of the Patents Act lists out the inventions which can’t be protected as Patents.
Sec. 3(k), Patents Act reads as below:-
“a mathematical or business method or a computer program per se or algorithms”
It clearly says that Computer programs and software cannot be protected in India under Patents Act.
To avoid application of Section 3 (k) of the Indian Patents act, in the claims few hardware components must be shown to form the essential part of the invention and some form of interdependence should be shown between the software and hardware components. Further the functions that require algorithm functions e.g. sensors etc. should be avoided, they can remain a part of the claim but how these sensors perform their function should not be claimed.
Recently the Indian Patent Office has published a Draft Manual Of Patent Practice And Procedure – Patent Office, India (2008) relating to the Patent Practice to be followed by the Indian Patent office and as per that manual an invention consisting of hardware along with software or computer program in order to perform the function of the hardware may be considered patentable. e.g., embedded systems.
In the USA computer programs are patentable inventions since early 1970s. In Gottschalk v. Benson (1972), the United States Supreme Court held that a patent for a process should not be allowed if it would "wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself", adding that "it is said that the decision precludes a patent for any program servicing a computer.
Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software. Article 52 of the European Patent Convention says that any invention which makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if that technical problem is solved by running a computer program.