What can be patented and what cannot be patented

Some time back I was asked by one of the readers of my article, if I can tell him what can be patented and what cannot be; hence this article.

This question appears to the one with a straightforward answer.  However, the answer to it is something that is highly debatable, and also varies depending on the country in which one wants to secure a patent.
 
A simple answer however is, anything that qualifies to be an invention can have a patent granted to it.
 
In the above answer, the word “invention” is the key word that requires definition.
 
In US, any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may have a patent granted to it, provided it satisfies all other requirements of patentability.
 
In India, an invention means a new product or a new process that involves technological advancement and/or has economic significance, which makes that new product or process non-obvious to a person who is skilled in the technology to which the product or process belongs. Additionally, the new product or process should be capable of being made or used in an industry for it to qualify as an invention.   
 
Most of the patent offices provide a simple definition of the word invention. However, they also provide a list of exclusions, which are not considered as inventions. This list is the one that often stirs up debates.
 
In India, section 3 provides a list of exclusion, and the list with examples is provided below:

1.      an invention which is frivolous or which claims anything obviously contrary to well – established natural laws: (Ex:

 
2.      an invention the primary or intended use or commercial exploitation of which would be contrary to law or morality or which causes serious prejudice to human, animal or plan life or health or to the environment; (Ex: A method of hacking into email accounts)
 
3.      the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature; (Ex: E = mc2)
 
4.      the mere discovery of any new form of a known substance which does not result in the enhancement of the known efficacy of that substance or mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such process results in a new product or employs at least one new reactant. (This exclusion has been at the forefront of most debates in the pharmaceutical sector)
 
5.      a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. (Ex: Mixture of sugar and colorants in water, which only produces aggregation of properties and synergistic properties)  
 
6.      the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; (Ex: A known type of torch connected to a know type of pen. Note, both the pen and torch work independently of each other)
 
7.      a method of agriculture or horticulture; (Ex: a method of growing plants)
 
8.      any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products; (Ex: process of carrying out a surgery. Note: processes in this case are not considered inventions. However, systems and apparatuses are still considered as patentable subject matter)
 
9.      plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals; (Ex: Cloning of animals)
 
10. a mathematical or business method or a computer program per se or algorithms; (this exclusion has been debated to great lengths. The debate is essentially because of the “computer program per se” exclusion. Note that, not all software related inventions are considered as “computer program per se”. Hence, the debate is relating to what should be considered as computer program per se, and what should not be)
 
11. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; (Ex: movies, poems etc.)
 
12. a mere scheme or rule or method of performing mental act or method of playing game; (Ex: Method of playing chess)
 
13. a presentation of information; (Ex: Presenting information in the form of a graph)
 
14. topography of integrated circuits; (Can seek protection under Semiconductor Integrated Circuit Lay-out Designs Act)
 
15. an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or componenets. (Usage of Nilgiri oil for reducing aches)
 
Some of the exclusions are straightforward; however, a few are debatable (section 3(d) and 3(k)).
 
Similar to India, most of the countries have provided with a list of exclusions. Some of the exclusions put forth by other countries may be similar to the ones provided above. It is important to be aware of the exclusion set forth by a country you are interested in before deciding on the patent specification drafting and filing strategy.
 
To know more about what can and cannot be patented in India, you may read our articles listed below:
 
I hope you found this article helpful. Please feel free check our patent services page to find out if we cater to your patent requirements.
 
You can download a copy of this article here
 
Best regards,
Team InvnTree   
 

How much does it cost to get a patent in India?

How much does it cost to get a patent in India?

Understanding the cost structure corresponding to applying for a patent can help in making some important decisions. Hence, instead of having a generic idea about the overall cost, it helps if you are aware of the breakdown of the cost structure and the time of incurring such expenses.

The overall cost of obtaining a patent includes the fee that has to be paid to the patent office (statutory fee) and the fee paid to the patent service provider (professional fee). The professional fee varies based on the service provider you may select. Hence, in this article I will deal only with the statutory fee.
 
Please note that, the most important factor in filing a patent application is preparing a patent specification. Drafting a patent specification is a highly skilled job, which can be only performed by persons who have both technical as well as patent law expertise. If a person or company is serious about protecting their intellectual property, it is highly recommeded to use the services of professional patent practitioners. To know more about this, you can read our articles on this.
The statutory fee depends on who the applicant of the patent is. The Indian Patent Office (IPO) has categorized the applicants into 4 categories:
  1. Natural person
  2. Startup(s)
  3. Other than natural person – Small Entity
  4. Other than natural person – Others except small Entity

Any individual(s) applying for a patent is considered as a natural person. On the other hand, all other entities that do not fall under the first category, fall under the remaining three categories of :

  1. Other than natural person – Startup
  2. Other than natural person – Small Entity
  3. Other than natural person – Others except small Entity
For example, legal entities, such as, companies would fall under these categories. It shall be noted that, a patent application can have more than one applicant, and even if one of the applicants do not fall under the first category, then the patent application is considered to be filed by applicants of the remaining two categories.
Applicants who are other than natural person are categorized into the below three categories.
  1. Other than natural person – Startup
  2. Other than natural person – Small Entity
  3. Other than natural person – Others except small Entity
The patent office charges the least fee for applicants who are natural persons and Startups.
The patent office also charges the least fee for entities who are startups. Certain conditions have to be met to qualify as startups. You can read more about this in our article
The patent office charges other than natural person applicants who are a small entity, a fee, which is between a natural person/startup and others except small Entity.The patent office charges a maximum fee for other than natural person applicants who are Others except small Entity/startup.The patent office collects 2 times the fee from the applicants who are "Other than natural person – Others except small Entity"  as compared to applicants who are "Other than natural person – Small Entity". Certain conditions have to be met by other than natural person applicants, who wish to claim "Small Entity" status. You can read more about this in our article. 
In this article, we will list down the fee applicable to all the categories of applicants. Please note that, the fee mentioned below is for E-filing of applications only. The patent office charges an additonal fee of 10% of the total fee, if filing is done through hardcopies. If the application is not filed online, and is done through hardcopies, you need to calculate the fee, at additional fee of 10% of the total fee.
 
No Description Patent office Fee (INR) 1$ = ~ 60 INR(E-Filing only) Comments
Other than Natural person Natural Person/Startup
Small Entity Other than small entity
1 Application for grant of patent 4000 8000 1600 Mandatory
2 Early publication fee 6250 12500 2500 Optional
3 Request for examination of patent application 10000 20000 4000 Mandatory
4 For every Extra sheet over 30 sheets 400/sheet 800/sheet 160/sheet Mandatory
5 For every Extra claim over 10 claims 800/claim 1600/claim 320/claim Mandatory

Sl. No. 1

 

A fee of INR 1600/4000/8000 has to be paid while submitting the patent application in the IPO, based on the type of applicant.
 
Sl. No. 2
A fee of INR 2500/6250/12500 has to be paid, based on the type of applicant, if you wish to have your patent application published by the IPO early. If this request is not made, then the IPO publishes your patent application after 18 months from priority date (date on which you first file a patent application for your invention). There are several advantages of having a patent application published early. Some of the advantages are: early publication can help in expediting the patent application examination process and the patent rights start from the date of publication.
 
Sl. No. 3
A fee of INR 4000/10000/20000 has to be paid, based on the type of applicant, requesting the IPO to examine your patent application. This request for examination can be filed and the fee paid within 48 months from the priority date. However, note that the patent office puts your application in queue for examination only after receiving this fee. Hence, if you want to expedite the patent process, it is advisable to file this request at the earliest. A startup can also request for expedited examination of their patent application. The fee for this is INR 8000. At present, the patent office has limited this request to about 1000 request in a year.
 
Sl. No. 4
The IPO accepts patent specification, which has up to 30 sheets without charging any extra fee. However, if the specification crosses 30 sheets, then a fee of INR 160/400/800/sheet for each extra sheet has to be paid to the IPO, based on the type of applicant.
 
Sl. No. 5
Further, the IPO accepts patent specification, which has up to 10 claims (no limitation on independent claims) without charging any extra fee. However, if the specification has more than 10 claims, then a fee of INR 320/800/1600/Claim for each extra claim has to be paid to the IPO, based on the type of applicant.
You may also calculate the patent office fee using our cost calculator below: All fee in USD.
 

Indian Patent Filing Cost Calculator

 
You may also read our below listed articles to gain more knowledge about the Indian Patenting system:

I hope you found this article helpful. Please feel free to contact us to know more about how our patent services can help you in your business. 

Thank you,
Team InvnTree

Is my product infringing on others patents?

This is the question all technology companies need to ask themselves at a very early stage of product development.To understand whether you product/process infringes on others patent rights; we first need to understand what patent infringement means. 

Patent infringement
A patent is said to be infringed when a product/process violates the rights granted to a patentee. A patentee (also referred to as an assignee of a patent) is given the rights to exclude others from making, using, importing, selling or offering for sale the patented invention for up to 20 years. This scope of protection granted to a patentee gives him the right to take legal action against the infringing parties.
 
How do we determine if a product/process infringes upon a patent?
 
To determine infringement of a patent by a product/process, one has to go through a section of a patent document called the claims. The claims section of a patent document describes in detail, the scope of protection granted to a patent.
 
The claims have to be analyzed in detail to find out if a product/process infringes upon the rights of a patentee. Depending on the nature of the claim, the claim would include a number of elements or process steps. Subsequently the scope of each of the elements/process steps has to be determined. Thereafter, your product/process has to be compared with the elements/process steps of the claim. The above comparison helps you determine whether the claimed elements/steps exist in your product/process.
A claim is said to be infringed if all the elements of the claim exists in your product. Similarly, a claim that includes process steps is said to be infringed, if all the process steps are present in the process that you intend to follow. 
 
In other words, if all the elements in the claims of the patent map on to the features of your product, your product is infringing upon the patent rights of the patentee.
It should be noted that, if your product does not have at least one element of the claim, then your product does not infringe upon the patent rights of the patentee. This analysis of infringement is carried out by well established doctrines developed over many years. This analysis is generally referred to as infringement analysis study/product mapping/claim mapping.
 
Now to give you an idea of how this works let me explain with an example.
 
Let’s take an example relating to a patent for a car seat, the claim describes a car seat which can be electronically height adjusted, backrest can be adjusted, and the seat can slide forward and backward. Now you should check whether all the elements of the patent claim appear in your product, i.e. whether your car seat product has an electronically height adjustable feature along with adjustable backrest and forward and backward sliding seat, if so, your product infringes upon the patent rights of the patentee.
 
If your product has all the features of the elements of the claim of the patent and has additional features like seat warmers, even then your product infringes upon the patent.
 
If your product does not have at least one feature mentioned in the elements of the claim, such as electronically height adjusting, but has the remaining features, then your product does not infringe upon the patent.    
 
I hope you found this article useful. Feel free to contact us for any information that you may require.
 
You can visit our website to know more about the patent services that we offer.
 
You can download a copy of this article here
 
Thank you,
Team InvnTree

4 fold approach to using patents for improving business competitiveness

Introduction 

The concept of patents can be traced back to the 14th century and it has consistently evolved over time. The concept of patents was introduced to encourage innovators by awarding exclusive rights over the improvements in technology made by them. In essence, a patent is a set of exclusive rights granted by a country in exchange for a public disclosure of their invention. The rights granted to a patentee, in most countries, include, the right to exclude others from making, using, selling, importing, offering for sale or distributing the patented invention without permission of the patentee. This set of exclusive rights is granted for a limited period of time, and in most cases the right is limited to 20 years.
The exclusive rights granted to a patentee have business impact, some of which are listed below:
  • A patentee gets the liberty to enjoy monopoly over the patented invention for 20 years
  • A patentee can monetize his patented invention by selling or licensing out his rights, in addition to other ways of monetizing
  • Engineers and scientists can access a rich pool of patent information and improvise on existing technology
  •  Competitors will have to create non-infringing products and processes
The business impact of patents can be used to enhance the competitiveness of a business. A wholesome, systematic and customized approach towards patents is required to use the power of patents to positively impact your business.
 
4 fold approach for enhancing competitiveness
 
1.                  Build a patent fortress
2.                  Proactively safeguard your business interests
3.                  Respect others intellectual property
4.                  Intelligent approach to product and process development  
 

One of the approaches for improving competitiveness of a business is by having product differentiators. Product differentiators are brought about by developing products that are technologically superior, has newer/better features or addresses specific needs of customers. Sometimes, there might not be any changes made to the product, however, companies might differentiate themselves from competition by offering products at reduced prices. This might be possible by making changes to the processes used in producing the product. Such modifications made to the products/processes might be patent worthy. Hence, when a company feels that they have made some modification that might be patent worthy, it is important to contemplate the idea of having such improvements protected by a patent.

You may go through our articles to know more about filing patent applications in India and the cost of filing patent applications in India.

Patents to Improve Competitiveness – InvnTree IP Services 

It shall be noted that such improvements give added advantages to a business. If a company hasn’t taken any measure to protect the improvement made by them, then competitors might as well copy such improvements, thereby diluting the advantage gained by the business. Further, competitors might copy the products and introduce the same at lower prices, as they would not have invested in developing the product/process. By protecting the improvements made to the products or processes, businesses gain at least the following advantages:
  • Create an entry barrier for competitors
  • Maintain product or process differentiators
  • Protect products or processes from being copied by competitors
  • Enjoy monopoly over improvements for 20 years
  • Increase valuation of the company

The previous approach dealt with protecting technological improvements made by a company. While, the previous approach dealt with building a patent fortress to safeguard ones business territory, it is equally important to monitor the patent fortress’ built by competitors.

It is often seen that, in a bid to build a patent portfolio that is as strong as possible, companies tend to protect things that already exist and sometime try to protect improvements that are not novel and are obvious. If they do succeed in protecting such existing and obvious technology using patents, then they might stop others from using such technology, or they can at least stop others from using such technology till somebody proves that the patents were wrongly granted.
It is important to take necessary actions to avoid being in a situation in which a company uses patents granted to an existing or obvious improvement to stop you from using such technology. This can be achieved by monitoring and opposing the patent applications filed in the technology that is of your interest
One can monitor patent applications filed by competitors and oppose grant of patent to such patent applications. On the other hand, one can also monitor patents that are getting granted in related technology fields, and opposes the patents even after the patent is granted. By taking such proactive steps, businesses gain at least the following advantages:
  •  Ensure against obvious improvements being protected by competitors
  •  Enhance the valuation of patents held by you in a technology field
  •  Avoid being sued for infringing patents that shouldn’t have been granted in the first place
  •  Easy access to freely use and adopt minor improvements in technology

Respect others intellectual property

In the previous two approaches, we dealt with building a patent fortress and ensuring that competitors do not strengthen their patent fortress using minuscule technological improvements. In the current approach we illustrate why it is important to respects others Intellectual Property rights.

As highlighted in the introduction, patents give exclusive rights to the patentee to exclude others from making, using, selling, importing, offering for sale or distributing the patented invention without permission of the patentee. In other words, if you copy, intentionally or otherwise, an invention patented by others, then you will be infringing on their patent right. A patentee can sue you for violating his patent rights, and if the court finds you guilty, then the damages that you might end up paying could be significant. Hence, it is important to be aware of patent rights held by others while carrying out your business.
A well proven approach to ensure that your products or processes don’t infringe on others patent rights is by carrying out a Freedom to Operate (FTO) study before introducing a product in a country. It is important to dig out the patents that exist in the field that you operate in and determine if your products or processes infringe on others patents. If found that the products/processes might infringe on others patent rights, then necessary steps have to be taken to avoid such infringement, and thereby avoid expensive law suits. By taking such precautions you will at least gain the following advantages:
  •  Ensure against introducing infringing products to the market
  •  Avoid expensive patent infringement suits
  •  Ensure that brand name is not tarnished by such infringement 

To know more about respecting others intellectual property, you may read our articles listed below:

Remember, no one got too far by reinventing the wheel, neither will you; hence, there is no point in reinventing the wheel. It is important to appreciate the fact that most of the problems that we might be trying to solve, might have been solved by somebody else in some part of the world. Therefore, it will be intelligent on your part to look at such solutions and improvise on them. Patent data is considered to be the richest source of scientific information, and using this information is an intelligent approach to product and process development.

By harvesting information provided by patents, you can work on improving solutions provided by others. Hence, the solution provided by you might end up being much more superior and also different. Further, one reduces the possibility on developing something that has already been developed, hence, your investment in R&D yields better returns. Furthermore, one can bring down the cost of developing a product by simply copying a patented invention and introducing the same in a country where the invention has not been patented. Additionally, patent data can be used to analyze technology trends and plan your business accordingly.
The ways in which patent data can be used by businesses is endless, and the advantages gained by using patent data are tremendously valuable. Some of the advantages of using this approach are:
  • Enhanced returns on investment in R&D
  • Development of products/processes that have improvised on existing technology
  • Reduced cost of development of product/process
  • etter business forecasting and planning

We hope you found this article helpful. You can download a copy of this article here

Please feel free to contact us for any information that you may need.

Thank you,
Team InvnTree