How novel does my invention have to be?

When most people create something that they think is valuable – they think they must get a patent on it. Nothing wrong with that of course, but the problem is that the law is very strict on what you can get a patent on.

As a matter of fact, most things cannot be patented. Most innovations today are in the tech space, and in the tech space, software rules.

Can I get a patent on software?

And as per Section 3 k of the Patent Act, software per se is not capable of being patented. Software per se means that the just software cannot be patented, however innovative it is. The software must be embedded on a system, and the composite unit must be innovative.

For instance, you build really innovative software that assists doctors in performing pediatric surgeries. Now, this software by itself is not capable of being patented.

However, this software embedded in a machine that is capable of deploying this software will make you eligible for a patent.

Why is it this way?

The exact wording of Section 3 k is:

(k) A mathematical or business method or a computer program per se

Therefore, the Section was drafted at a time when computer programs were not as complex and useful as they are today. It compares them to “mathematical methods” or “business methods”, which are merely theoretical propositions without direct practical application.

In today’s world where computer programs are commercially useful and directly applicable, this section is outdated.

Having said that, the rate of change in the industry and the pace at which algorithms are being churned out will make it impossible for the Patent office to keep up with the number of patent applications that will be filed if software patents were allowed!

What about for other inventions?

For those of you who are not in pure software development, there are three things you need to be aware of when it comes to patent application. An invention has to:

a. Be novel

b. Be capable of commercial application

c. Not be obvious

Novelty

Novelty, as the name suggests, means that in order for something to get a Patent, it should be “novel”.

Novelty means that something must be new, not discovered or even written about anywhere in the world. This is a very stringent provision – even if something has been written about in a Bulgarian journal in 1956, you will not be able to get a Patent for the invention today.

Remember: It need not have been commercially used anywhere else, one article or newsbyte somewhere is enough to affect your patent application.

So if you have an invention that you want to patent, do not write about it or discuss it with anyone else. Do not present it at fora or symposia.

If you must discuss your invention with business partners or close colleagues, make sure that you sign Non Disclosure Agreements with people wherever possible.

Capable of commercial application

The second requirement, and a rather obvious one, is that the invention must be capable of commercial application and exploitation.

In India, it takes 4 – 7 years and upto 2 lakh rupees to get a patent (depending on the complexity of your invention and whom you hire to help you). The amount of time and money invested in getting a patent is so high, especially in India, that no one would invest the energy otherwise.

But even if you were so inclined, your application would be rejected by the Patent office if it were not capable of commercial application.

Non-obvious

This is the third requirement, i.e. that the invention should not be obvious. What does being obvious mean? It means that the invention should not merely be a combination of many things which have already been invented.

If you stick a gun to a car and drive it around as a “personal assault vehicle” for example, it may get you stares (and land you in jail), but it will not qualify for a patent even though it is novel and new.

Why?

Because you have merely combined two things that already exist and brought them together. For a person who has seen a gun and seen a car separately, this combination is obvious, i.e. it is clear what the combination will look like and what it will do.

Conclusion

We have seen the three requirements of patentability – ‘novelty’, ‘non-obviousness’ and ‘capability of commercial application’. If these three requirements are met, you can successfully file for a patent. If these requirements are not met, you will not be able to file for a patent.

Additionally, core software code cannot be patented. It is only if it is embedded in a device to create a product that is innovative – that can get patent protection.

[About the author: Contributed by Hrishikesh Datar, founder of vakilsearch.com, online legal services provider (Legal Advice, Legal Documents & more).]

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