"The patent system added the fuel of interest to the fire of genius." Abraham Lincoln (the only U.S. President to be issued a patent)
Hidden innovation which is eventually lost to society is exactly the situation which patents were intended to correct. In a sense, patents are an indication that society expects us not only to contribute products, but also to disclose our technology, and not just keep it hidden. Certainly, if a business folds completely, we do not want its accumulated expertise to be lost as well.
History of Patents
concept of the patent was established in
1552, a series of "letters patents" was issued by the Crown. The
monarchy began a trend of issuing patents for its own benefit and for
benefit of officers and friends of the Court. Patents were issued on
industries, not just inventions. For example, the Stationers enjoyed
control over the publishing industry in
The United States Patent Office represented an early form of U.S. Federal support for science which enabled scientists, inventors, and entrepreneurs to secure property rights for their innovations. While many of the original thirteen American Colonies had some form of patent law, Thomas Jefferson (among others) influenced the development of the first national patent system in 1790.
Article 1, Section 8, Clause 8 (the "Intellectual Property Clause" also called the Patent and/or Copyright Clause) of the United States Constitution states, "Congress shall have the Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
patents issued during the 18th and 19th centuries were attempts to
practical problems. In part, the practical nature of most patents was a
reflection of ideals that only physical, useful inventions should be
patent. It was not until the mid-twentieth century that there was a
patent "everything made by man under the sun."
patents enabled corporations to essentially create legalized monopolies
their inventions. Many have argued that this has hurt competition,
show that the rise of the corporation beginning in the late nineteenth
Patents currently take several years from date of application filing to date of issuance. Many times, a patent is issued long after the technology that was embodied in the patent has become obsolete. Patents are still being granted for obvious, non-useful inventions (this is legally uncalled for including under the Indian Patents Act, 1970). Additionally, there currently exists a flood of patent infringement litigation - American corporations have realized the financial benefit associated with winning a patent infringement suit. Millions of dollars are routinely awarded for damages and patent licensing fees. For some, patents have become nothing more than a mechanism for bargaining in court.
What is a Patent?
A patent is a set of exclusive rights granted by a government to an inventor or applicant for a limited amount of time (normally 20 years from the filing date). The term "patent" originates from the term to patent which means to lay open (to public inspection) and the term letters patent, which originally denoted royal decrees granting exclusive rights to certain individuals or businesses. Per the word's original definition, one theory of patent legislation is to induce the inventor to disclose knowledge for the advancement of society in exchange for a limited period of exclusivity. Therefore a patent is a monopoly right.
According to the Indian Patents Act, 1970 –
Patent is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patent, anybody can make use of the invention.
What is an invention?
According to the Indian Patents Act, 1970 – Invention means any new and useful a) art, process, method or manner of manufacture, b) machine, apparatus or other article, c) substance produced by manufacture, d) and includes any new and useful improvement of any of them, and alleged invention. An invention is the creation of intellect applied to capital and labour, to produce something new and useful. Such creation becomes the exclusive property of the inventor on grant of patent.
Rights granted and rights not granted
A modern patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention. Generally, patents are enforced only through private actions; namely, through civil lawsuits or licensing agreements. Governments typically reserve the right to suspend or cancel a patent at will.
An application for a patent (other than a design patent) must explain how to practice (i.e., make and/or use) the invention(s) and must also include "claims" that particularly point out the invention(s) and will define the protection conferred to the owner of the patent, once granted. Generally, the exclusive rights are limited to the invention(s) defined by the patent's claims. Patent claims are typically of the form of a long sentence, e.g., "An apparatus for catching mice comprising, a base member for placement on a flat surface, a spring member...", "A chemical for cleaning windows comprised of 10-15% ammonia, ...", "A method for computing future life expectancies, the method comprising gathering personal data including X,Y, Z, ...", etc.
Claim language formats and practices vary widely between different countries. Each word of a claim is considered an "element" of the claim. In order to exclude someone from using your invention in a court you will have to demonstrate to the court that what the other person is using is identical to the claimed invention.
International Governing laws
At this time, there are a number of significant international treaties governing patent law. The most universal of these is the WTO TRIPs Agreement, to which almost all countries are a party. The United States, European Union, India and Japan, are parties to all of the significant treaties. This has led to significant harmonization of patent law worldwide, particularly in the last decade of the 20th century and continuing into the 21st.
Patent grants are territorial in nature. Thus, patent protection in multiple countries require separate filings of patent applications in each country, or region, where protection is sought. Within Europe, a single patent application procedure is available through the European Patent Office, but successful applications result in multiple patents (up to 28) rather than a single European-wide patent. Such a European-wide unitary patent, or "community patent", has been the subject of discussion at the EU level since the 1970s, with no result so far.
Many of the international treaties are designed to afford some recognition of filing dates to patent applications filed in one country. In this respect, the most important treaty is the Paris Convention. Typically, inventors are allowed one year from the date of their filing in their home country to file the application abroad, frequently called national stage filing. Systems such as the Patent Cooperation Treaty (or PCT) allow inventors a cost effective way to further delay national stage filings.
Patents Act, 1970
Rights of a Patentee
The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property.
Period of Patent
Use of Patented Invention by the Central Government
The grant of patent confers the exclusive right of use on the patentee for commercial gain but the Act recognizes that the Central Government may use any invention even without the payment of royalty to the inventor.
The idea is that the invention can be put to use for general public benefit by the government in certain circumstances when the patentee would have to forego his commercial gain in the general public interest.
Some Restricted Use of Patented Invention Permissible Under the Law
The essence of a patent is conferring of the exclusive right on the patentee. Yet some restricted use of a patented invention by a person other than the patentee is permissible under the law. For such instance, use of a patented invention is permissible for research or experimental purposes or for imparting knowledge or instructions to pupils.
What categories does the 1970 Patents Act exclude?
The 1970 Patents Act defines what are not inventions. The following are not inventions within the meaning of this Act:-
Inventions relating to atomic energy not patentable
be granted in respect of an invention relating to atomic energy falling
sub-section (1) of Section 20 of the Atomic Energy Act, 1962.
Inventions where only methods or processes of manufacture patentable
In the case of inventions:-
Background and History of TRIPs
TRIPs was added to the General
Agreement on Tariffs and Trade (GATT) at the end of the Uruguay
Round of trade negotiations in
1994. Its inclusion was the culmination of a program of intense
lobbying by the
United States, supported by the EU, Japan and other first world states.
influential were campaigns of unilateral economic encouragement (under
System of Preferences) and coercion (under Section 301 of the Trade Act)
After the Uruguay round, the GATT became the basis of the World Trade Organization (WTO). Since ratification of TRIPs is a compulsory requirement of WTO membership, any country wishing to obtain easy access to the numerous international markets opened by the WTO must enact the very strict intellectual property laws mandated by TRIPs.
Furthermore, unlike other international agreements on intellectual property, TRIPs has a powerful enforcement mechanism. States which do not adopt TRIPs-compliant intellectual property systems can be disciplined through the WTO's dispute settlement mechanism, which is capable of authorising trade sanctions against dissident states.
The Requirements of TRIPs
TRIPs requires member states to provide strong intellectual property rights in many of these areas. For example, under TRIPs:
Software and Business Method Patents
Another recent controversy has been over the relationship between the requirements in TRIPs Article 27 for patentability in all "fields of technology", and the necessity of granting software and business method patents (see EU Directive on the Patentability of Computer-Implemented Inventions). In this situation, highly esoteric legal questions, with socially and rhetorically constructed answers, have become the medium through which political contests are fought.
Only method or process of manufacture patents are allowed for such substances under the 1970 Act.2 India's laws thus do not fulfill the obligations set out in Article 27 of TRIPS,3 but as a developing country it can avail itself of the alternate paths laid out in Articles 70.8 and 70.9.
Although computer programs per se are not patentable and this situation is not normally changed when a program is loaded into a known computer. But if the program when running on a computer or loaded into a computer, brings about or is capable of bringing about a technical effect which goes beyond the normal interactions between the program (software) and the computer (hardware on which it is run), then it is patentable.
However the Board of Appeal has held that there is a distinction between a mathematical method or algorithm as such, and it's use in a technical process. Even if the idea underlying an invention may be considered to reside in a mathematical method, a claim directed to a technical process in which that method is used is not an attempt to obtain protection for the mathematical method as such.