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Patent rejection based on what is not expressly present in Prior Art
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Introduction
Among various requirements of patentability, novelty and non-obviousness/inventive step requirements are judged based on prior art. A claim of a patent application is considered to be novel if the claim is not anticipated by a prior art reference. A prior art reference may make express, implicit and inherent disclosure, which may be used for judging whether the prior art reference anticipates a claim. The article deals with nuances in using inherent disclosure made by a prior art reference to judge whether the prior art reference anticipates a claim.
Inherent disclosure
It is important to recognise what can be considered inherent disclosure to understand how prior can be applied to reject claims based on anticipation. Some of the important forms of inherent disclosure and key considerations while dealing with rejection based on inherent disclosure are listed below.
1. Inherent disclosure of a function by prior art
2. Inherent disclosure of a property or a characteristic by prior art
3. Inherent disclosure of a process by prior art
4. Burden of proof
5. Recognition of inherent disclosure by person of ordinary skill in the art
6. Patent on new use
1. Inherent disclosure of a function by prior art
A subject matter may have been claimed in terms of its function. A prior art reference may disclose a product, process, composition or an article of manufacture as claimed, while being silent on the claimed function. Such a reference may be considered to be inherently disclosing the claimed function if the natural result flowing from the operation as taught by the reference would result in the performance of the questioned function.
A function is not inherently disclosed by prior art reference if the questioned function may result from optimization of conditions, and not necessarily by what is disclosed by the prior art reference.
As an example, reference is made to the decision laid down in Schering Corp. v. Geneva Pharms. Schering was granted two patents, viz. US4282233 (earlier) and US4659716 (later). US4282233 relates to antihistamine loratadine, an active ingredient of the pharmaceutical drug CLARITIN (Brand name). US4659716 on the other hand relates to a metabolite of loratadine called descarboethoxyloratadine (DCL).
The patent at issue was US4659716. The prior art reference, US4282233, did not expressly disclose DCL or refer to metabolites of loratadine. However, it is a well known fact that the inevitable consequence of administering loratadine is formation of DCL. Hence, some of the claims of US4659716, which covered formation of DCL within the human body, were held to be anticipated by US4282233.
2. Inherent disclosure of a property or a characteristic by prior art
A claim might recite a property or a characteristic along other limitations. A prior art reference might teach a product or a composition, which is claimed, while not expressly disclosing the property. In such circumstances, the prior art reference may be considered to be inherently disclosing the property. The logic for arriving at such conclusion is that, product/chemical composition and its properties are not separable; hence, if a claimed product and the product taught by the prior art reference are identical, then they must have the same properties, and therefore the prior art reference inherently discloses the property.
As an example, reference is made to the decision laid down in Titanium Metals Corp.v. Banner. In this case, the difference between the claim of a patent application in question and the prior art reference (Russian article) was that the claim recited a property, viz, “good corrosion resistance”, of an alloy, and said property was not expressly disclosed by the prior art reference, but the alloy was disclosed. The court decided against grant of patent even though the property included in the claim was not expressly disclosed by the prior art reference.
From the above case law, it can be concluded that claiming a product which discloses a new property of the prior art product does not constitute the claim novel. The range of titanium, nickel, and molybdenum in the prior art fall within the range disclosed by “The Titanium Metals Corp”. Therefore, it may be construed that the properties of the alloy claimed by “The Titanium Metals Corp” may be inherently present in the alloy disclosed in the Russian article. If the composition of the product in the prior art is similar to the claimed product, it is therefore obvious that the properties of the products will be same.
3. Inherent disclosure of a process by prior art
A claim might recite process steps, which might have not been expressly disclosed by a prior art reference. However, the prior art reference might have disclosed a device/system, which in its normal and usual operation performs the claimed process steps. In such circumstances, the prior art reference may be considered to be inherently disclosing the claimed process steps.
As an example, In re William J. KING, claims of a patent application were directed to a method of enhancing colour effects produced by ambient light. The corresponding specification disclosed an article of manufacture to carry out the claimed method. The article of manufacture disclosed in the patent application was also taught by a prior art reference (Donley patent), while being silent on some on the process steps of the claim. However, it was held that the prior art reference inherently discloses and anticipates the process steps since the article of manufacture taught by the prior art reference performs the claimed process steps its normal and usual operation.
4. Burden of proof
A patent examiner using a prior art reference to allege that a limitation of a claim is inherently present in the prior art reference has an initial burden to explain as to why the limitation is inherent in the prior art reference. “The examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art.”
Once the examiner presents reasoning (not necessarily absolute proof; prima facie case suffices) tending to show inherency, the burden shifts to the patent applicant to show that the subject matter of the prior art reference does not inherently disclose/possess the limitation of the claim under contention.
5. Recognition of inherent disclosure by person of ordinary skill in the art
A person of ordinary skill in the art need not have recognised the inherent feature of the prior art reference at the time of the invention in order to assert that the prior art reference anticipates a limitation of a claim. Hence, the fact that the limitation of the claim is inherently present in the prior art reference is sufficient to allege that claimed limitation is inherently disclosed in the prior art reference.
6. Patent on new use
Mere recitation of a newly discovered property of a compound/property/system/process in a claim may be anticipated by a prior reference that inherently discloses the newly discovered property. However, a claim directed to a new use for an old compound / property / system / process based on unknown properties (now discovered) of the old compound / property / system / process might be patentable. It is important that “a new use” does not mean newly recognized result or outcome of a prior art.
As an example, a prior art might disclose an alloy, and the prior art might be silent on the corrosion resistance of the alloy. In case the corrosion resistance of the alloy is later discovered, and a patent application is filed by merely reciting that the alloy is corrosion resistant (newly recognized result or outcome of the prior art), then the claim might be anticipated by prior art. On the other hand, in light of the newly discovered property of corrosion resistance of the alloy, if a new use, such as a process of using the alloy in a high corrosive environment (new use) is claimed, then the claim might not be anticipated by the prior art reference.
Conclusion
Prosecuting patent applications requires thorough understanding of the grounds that can be used by patent examiners for rejecting claims and recourse patent applicants can take to deal with such rejections. Understanding requirements of rejection based on inherency can go a long way in deciding claim drafting strategy and can also be used for challenging validity of asserted claims during litigation.
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Establishing priority dates of claims in a patent specification
Introduction
Priority date is imperative to claims of a patent application because knowledge or information available in the public domain before the priority date is taken into consideration while determining whether the claim(s) are entitled to be granted or rejected. Delay in securing the priority date may lead to addition of more information or knowledge to the public domain, which may adversely affect possibility of a patent grant. The approach applied by the patent office in India to assign priority date to claims is discussed in this article.
Determining priority date
A complete patent application may include one or more claims, and each and every claim of the patent application is assigned a priority date. In other words, different claims in a patent application can have different priority date.
In case a complete patent application is claiming priority from a previously filed provisional patent application, and if a claim of the complete patent application based on the subject matter disclosed in the provisional patent application, then the priority date of the claim will be the filing date of the provisional patent application.
The law in India allows an application filed as a complete patent application to be considered as a provisional patent application, if a request is made within 12 months of filing the above referred complete patent application. A subsequent complete patent application that is filed by claiming priority from such a provisional patent application can have a claim based on the subject matter disclosed in above referred provisional patent application. In such as scenario the claim’s priority date will be the filing date of the provisional patent application (which was filed as a complete patent application earlier).
A complete patent application may be filed by claiming priority from two or more provisional applications. In case a claim in such a complete patent application is based on the subject matter disclosed in one of those provisional patent applications, then the priority date of the claim will be the filing date of the provisional patent application in which the subject matter is disclosed.
On the other hand, if a claim in such a complete patent application is based on the subject matter disclosed in parts in multiple provisional patent applications, then the priority date of the claim will be the filing date of the provisional patent application that was last filed.
A complete patent application may be filed within 12 months of a previously filed application in India, and claim priority from the same. In case a claim in such a complete patent application is based on the subject matter of the previously filed application, then the priority date of the claim will be the filing date of the previously filed application.
A claim in a divisional patent application will have its priority date as the filing date of an earlier application (provisional(s) or complete from which the divisional application originated) in which the subject matter on which the claim is based on is first disclosed.
A complete patent application filed in India may claim priority from one or more applications filed in a convention country. A claim in such a complete patent application will have the priority date as the filing date of the application in the convention country in which the subject matter on which the claim is based on was first disclosed.
Conclusion
Priority date of a claim has a bearing on what can be considered as prior art to a claim in a patent application. The points discussed above provide an overview of how priority date is determined in different scenarios. Hence, claims should be drafted in such a way that an earliest priority date is established, while also considering the scope of protection desired, especially when a complete patent application claims priority from multiple patent applications.
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Territorial Jurisdiction of Software Patents
Introduction:
Most often software in computer systems is located within a user device (client) and a remote computing resource (server). The client can be at one location, connected over a network (e.g., the internet) to the server. A user accesses the internet with a device to request or upload data to the server over the network. The server processes the request, or stores the data and delivers the result over the network.
Software related inventions as a whole can be operated across territorial borders. Thus, the question arises whether the software patent can be enforced, since it is known that patents rights are territorial in nature.
Consider a patented software invention in the United States covering a “product recommendation” method and system. A competitor enables users in the United States to download an application onto a mobile device. The user accesses the application to browse through products. The activity of the user is sent to a server located in India. The server processes the information in India and provides product recommendations. The product recommendations would then be available to the user on his device in the United States.
Patent Infringement Liability:
Continuing from the above example, an owner of such a software patent would be in a dilemma as to whether the competitor is liable for infringement of his patent, given the fact that, his patent only covers United States, and the competitor is carrying out part of the invention outside United States.
Such scenarios have come before courts in US and UK, and the decisions are encouraging for software patent owners. We will be discussing a case between NTP Inc. and Research In Motion Ltd, in US, and another case between Menashe Business Mercantile Ltd. & Anor and William Hill Organization Ltd, in UK. In both the cases, even though the competitors argued that part of their systems was outside the jurisdiction of the patents, the competitors were held liable for infringement.
Case 1: NTP Inc. v Research In Motion Ltd
In November 2001, Research in Motion(RIM) was sued by NTP Inc. RIM is the manufacturer of the BlackBerry device, NTP sued RIM for infringement of five US patents, which NTP alleged covered the BlackBerry system.
The five patents of the NTP were covering the components and process necessary for integrating an email service and wireless network.
BlackBerry enabled its users, through its devices, to not only make conventional telephone calls, but also to have email access through the BlackBerry "push technology”. The BlackBerry email system intercepts a message to an email user and then routes the message to a relay component that in turn routes the message to a network. The BlackBerry "Relay" component, which was equivalent to one of the claim limitations in NTP patents, was located in Canada.
In the District court, the jury found RIM infringing on all the claimed elements, except for RIM's relay component, which was located in Canada, all the other elements of NTP's claims was present within the United States. However, the jury found that the operation of the BlackBerry was accomplished according to method claim described in NTP's patent and awarded monetary damages and entered a permanent injunction enjoining RIM from further manufacture, use, importation and sale of accused BlackBerry devices.
RIM appealed to the Federal Circuit, challenging the District Court’s claim interpretation, as well as disputing the applicability of § 271(a) to its extraterritorial operations, based on the point that the relay component of the BlackBerry system was located in Canada. The Federal circuit considered this argument, but reasoned that
"even though one of the accused components in RIM’s BlackBerry system may not be physically located in the United States, it is beyond dispute that the location of the beneficial use and function of the whole operable system assembly is the United States".
The Federal circuit concluded that:
“the location of RIM’s customers and their purchase of the BlackBerry devices establishing control and beneficial use of the BlackBerry devices within the United States satisfactorily establish territoriality under section 271(a).”
Case 2: Menashe Business Mercantile Ltd. & Anor v William Hill Organization Ltd.
In October 2001, William Hill was sued by Menashe in UK. The patent granted to Menashe is "Interactive, computerized gaming system with remote control".
William hill enabled users in UK to install software program on their computers. This allowed the users to access a server which was part of William Hill’s on-line gaming system. However, the servers were located in Antigua. Menashe sued William hill for a contributory infringement.
William accepted that the CD containing the software program was an essential element of the invention, but disputed that the patent was not put into effect in UK, since the server was located in Antigua. William took the above line of argument as defense.
However, the decision was in favor of Menashe. The judge affirmed that:
“The claimed invention requires there to be a host computer. In the age that we live in, it does not matter where the host computer is situated. It could be in the United Kingdom, on a satellite, or even on the border between two countries. Its location is not important to the user of the invention nor to the claimed gaming system. In that respect, there is a real difference between the claimed gaming system and an ordinary machine. For my part I believe that it would be wrong to apply the old ideas of location to inventions of the type under consideration in this case. A person who is situated in the United Kingdom who obtains in the United Kingdom a CD and then uses his terminal to address a host computer is not bothered where the host computer is located. It is of no relevance to him, the user, nor the patentee as to whether or not it is situated in the United Kingdom.”
The Judge’s view was:
“it would be wrong to apply the old ideas of location to inventions of the type under consideration in this case.” Instead, it is pertinent to ask who uses the claimed gaming system. The answer must be the punter. Where does he use it? There can be no doubt that he uses his terminal in the United Kingdom and it is not a misuse of language to say that he uses the host computer in the United Kingdom. It is the input to and output of the host computer that is important to the punter and in a real sense the punter uses the host computer in the United Kingdom even though it is situated in Antigua and operates in Antigua. In those circumstances it is not straining the word "use" to conclude that the United Kingdom punter will use the claimed gaming system in the United Kingdom, even if the host computer is situated in, say, Antigua. Thus the supply of the CD in the United Kingdom to the United Kingdom punter will be intended to put the invention into effect in the United Kingdom”.
Conclusion:
From both the cases, we can conclude that, patent rights may be enforced even though one of the elements in the claimed system or method is located outside the territory of the patent, provided that the beneficial use of the system occurs within the territory of the patent granted.
In this new age of complex patent enforcement scenarios, to strengthen the patent rights of an invention relating to cloud computing, a careful strategy should be adopted for drafting and filling patent applications.
We hope you found this article useful. You may be interested in reading our article "Are software inventions patentable in India?"
Our team has in-depth knowledge with respect to patenting strategy for cloud computing related technologies.
Patenting mathematical methods
According to the section 3 (k) of the Indian Patent Act, mathematical and business methods, computer programmes per se or algorithms are categorized as non patentable subject matter.
Why are mathematical methods not patentable?
The Manual of Patent Office Practice and Procedure provides reason as to why mathematical or business methods are not considered patentable.
With reference to section 3 (k), the manual says, and I quote:
“Mathematical methods’ are considered to be acts of mental skill. A method of calculation, formulation of equations, finding square roots, cube roots and all other methods directly involving mathematical methods are therefore not patentable. With the development in computer technology, mathematical methods are used for writing algorithms and computer programs for different applications and the claimed invention is sometimes camouflaged as one relating to the technological development rather than the mathematical method itself. These methods, claimed in any form, are considered to be not patentable.”
The interpretation of this section has generated several debates and arguments over the years. This section can be analyzed in support of a case, which may provide a better interpretation of section 3 (k) and especially inventions dealing with mathematical methods.
Electronic Navigation Research Institute vs. Controller General of Patents
On July 5th, 2013, the Intellectual Property Appellate Board (IPAB) passed a decision denying a patent to Electronic Navigation Research Institute for their invention that relates to a method for calculating Chaos Theoretical Exponent value (CTEV). The Deputy Controller in his decision had denied a patent to the applicant on the grounds of non patentable subject matter under Section 3 (k) of The Patent Act.
In light of this case, the controller and IPAB’s considerations, while deciding denial of patents for inventions that fall under section 3 (k), especially mathematical methods, are analyzed.
The Deputy Controller held that the above invention was based on a mathematical method for solving mathematical equations and declined to accept the technical effect theory, as he was of the opinion that Indian Patent Act does not allow patents for mathematical methods, which have technical advancements. Hence the invention was rejected as non patentable under Section 3(k) of the Indian Patent Act.
The Appellant’s invention relates to a system for analyzing a time series signal by a method based on Chaos Theory and calculating a chaos theoretical exponent value (CTEV). The conventional chaos theoretical exponent value calculation systems presumed that it analyses a system of stable dynamic. Thus the temporarily changing dynamics cannot be calculated as a significant value. The inventors claim to have invented a system which makes it possible to calculate a CTEV that could not have been so far processed in a system of temporarily changing dynamics and to perform the process thereof at a high speed and on a real time basis, and to calculate a CTEV even from a time series signal which includes noises. The complete specifications also describes that the invention calculates the average CTEV in a shorter time of two decimal orders or more.
Controller’s Decision
The Patent Office issued the First Examination Report (FER) on 11th June 2007 with the objections that the claims fall within the scope of the clause (k) of Section 3 and Section 2(1) (j) of the Indian Patent Act, 1970 as it lacks novelty and inventive step. A response to the first examination report (FER) was filed by the applicant on 9th April 2008. A hearing was also requested by the applicants along with the submissions. After considering the submissions made by the Applicant, as well as descriptions and claims as on the records, the Deputy Controller was of the opinion that the alleged invention still falls under Section 3(k) of the Patents Act. Hence a grant of patent to the above application was rejected.
Appellant’s allegations against the controller’s decisions
The Appellant (who are the applicants) then filed an appeal against the Controller’s decision before the IPAB, and one of the grounds was that the Controller had wrongly negated the ‘technical effect” holding incorrectly that the Indian Patent Law does not follow the EPC.
IPAB’s decision to the above allegation
In response to the Appellant’s allegation, the IPAB referred to a previous case Yahoo vs. Rediff, which was raised on the same grounds. The IPAB cited that “inventive step must be a feature which lies with a patentable subject matter. Otherwise, the patentee by citing economic significance or technical advance in relation to any of the excluded subjects can insist upon grant of patent thereto. Therefore, this technical advance comparison should be done with the subject matter of invention and it should be found it is not related to any of the excluded subjects…….”
The IPAB here declined the allegation by the Appellants by stating that the Controller was of the opinion that the claimed invention, although it was a technical advancement, it still was nothing more than a mathematical method based on various algorithms for which the Indian patent law does not grant a patent. The identifiable technical contribution provided by the claimed invention itself came under the excluded subject matter and so the IPAB justified the controller’s decision that a patent cannot be granted for a mathematical method according to the patent law in India and the appeal was dismissed.
Conclusion
In light of the above discussion, one of the ways of analyzing patentability of inventions that involve mathematical methods is by adopting a “problem and solution” approach of analysis. One may try to define the technical problem the invention is trying to solve, and thereafter identify the technical solution that addresses that problem. Further, one can try to determine whether that technical solution itself is the “mathematical method” or is it beyond the “mathematical method”. Inventions that propose and claim a technical solution that is beyond a “mathematical method” have a higher probability of having a patent granted.
We hope you found this article useful. You may be interested in reading our articles:
What can be patented and what cannot be patented
Are software inventions patentable in India?
Issues concerning patentability of discoveries in India
Issues Concerning Patenting Inventions Relating to Plants, Animals and Microorganisms
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Best regards – Team InvnTree
Indian Patent’s Achilles Heel – Statement and Undertaking
Introduction
At the time of filing a patent application in India, the applicant must submit an undertaking stating that, he would keep the Controller updated from time to time about patent applications filed outside India relating to the same or substantially the same invention as filed in India. Such updates shall be provided till the patent is granted in India. The objective of seeking such information from the applicant is to assist the Indian Patent Office in examining the Indian patent application.
History:
Governing statute
Interpretation of the governing statute
(m) that the applicant for the patent has failed to disclose to the Controller the information required by section 8 or has furnished information which in any material particular was false to his knowledge;
Hindustan Unilever limited (HUL) had filed for a patent in India for an invention relating to “filter cartridge for use in gravity flow filtration”. Subsequently,HUL was granted a patent (IN 195937) on August 26, 2005. On 2008, it had launched water purifier named "pureit" in the Indian market. Tata Chemicals Ltd. came up with a water purifier named SWACH in the following year, against which HUL had filed a suit for infringement. Tata Chemicals Ltd. objected the validity of the patent IN 195937 on various grounds, section 8 being one among others.
108. The knowledge of the prior art is not the same as the opinion of the EPO . In this case, we sustain the objection raised by the applicant regarding Section 64(1)(m). The patent is liable to be revoked on this ground also
Ajanta Pharma Ltd, a leading Indian drug maker had filed for revocation of two Allergan’s patents on Ganfort (Patent No. 212695) and Combigan (Patent No. 219504) on the grounds of "obviousness, insufficiency and non-disclosure of information under Section 8.
However, no such information was provided to the Patent Office.
105. For the above reasons ORA/21/2011/PT/KOL is allowed and patent No.219504 is revoked.
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Should I apply for a patent in the name of my company or in my name?
Several start-ups, smaller companies and family owned companies among others, have asked us whether they should apply for a patent in the name of their company or in the founder’s name. Well, even though there is no single correct answer, several factors can be considered, and a decision that suits the situation, can be taken. Some of the factors that can be considered while taking the decision are listed below:
|
Sl. No. |
Description |
Patent office fee (INR) (e-filing) |
||
|
Natural Person (individuals)/ Startups |
Other than individuals |
|||
|
Small entity |
Other than small entity |
|||
|
1 |
Application for grant of patent |
1600 |
4000 |
8000 |
|
2 |
Early publication fee (Optional) |
2500 |
6250 |
12500 |
|
3 |
Request for examination of patent application |
4000 |
10000 |
20000 |
|
4 |
Extra pages – After 30 sheets |
160/Sheet |
400/Sheet |
800/Sheet |
|
5 |
Extra claims – After 10 claims |
320/Claim |
800/Claim |
1600/Sheet |
The primary objectives for obtaining a patent are to establish monopoly using the patented technology and gain monetary benefits from patent infringers. Both the objectives, if they were to be achieved, may require initiation of patent infringement suits. Hence, we will analyze some of the outcome of such suits from the perspective of patent being owned by individual(s) or company.
If the patent owner prefers “damages” instead of “account of profits”, then it is preferable to have the patent owned by the company, as damages can be relatively easily calculated and the size of the damages can also be substantially large, as compared to a scenario wherein the patent is owned by individuals.
How soon after filing a patent application in India, will it be examined?
It has been a common misconception that, a patent application is queued for examination after it is filed at the Indian Patent Office (IPO). In India, filing a patent application does not essentially mean that an Applicant for the patent is requesting the IPO to examine his patent application. In fact, the Applicant can refrain from filing a request for examining his application up to 48 months from the filing date of the Indian patent application. It shall be noted that, if the Indian patent application is claiming priority from a corresponding patent application filed in a convention country or a PCT application, then the 48 month duration is calculated from the priority date of the Indian patent application.
- A request for examination of the patent application has been made
- The patent application has been published
- A request for examination of the patent application has been made
- The patent application has been published
- 31 months has passed from the priority date of the Indian patent application, unless “express” request for examination is filed
Team InvnTree
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Can a lapsed patent be restored in India?
Once an Indian patent is granted for your invention, it has to be maintained subsequent to the grant. Maintaining a patent includes the task of paying patent renewal fee each year. Failure to pay the renewal fee will result in the patent ceasing to have effect.
The patent renewal fee in India is collected from the 3rd year onwards. Once the patent is granted, the pending renewal fee calculated from the 3rd year has to be paid. Further, the renewal fee for the subsequent years shall be paid before the expiration of the previous year of the patent. For example, renewal fee for the 8th year shall be paid before the expiration of the 7th year of the patent. The renewal fee details are provided below:
|
Renewal fee – Year |
Patent Owner – Natural Person |
Patent Owner – Other than natural person |
|
|
Small Entity |
Other than small entity |
||
|
3 to 6 |
800 |
2000 |
4000 |
|
7 to 10 |
2400 |
6000 |
12000 |
|
11 to 15 |
4800 |
12000 |
24000 |
|
16 to 20 |
8000 |
20000 |
40000 |
Should I apply for a patent before publishing my invention?
We come across several individuals who publish their work, and thereafter explore the option of patenting. Hence, we have penned down our thoughts on effects of publication on patenting.
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Can the details of my invention disclosed in the patent application be maintained as a secret?
Often innovators wish to have their innovation protected by a patent, and at the same time are concerned that, publication of their patent application will enable competitors to copy their innovation. A common question posed by innovators is, whether it is possible to protect their innovation by a patent and at the same time restrict details of the information disclosed in their patent application from public access. A simple and straight forward answer to the previous question is, NO, it is not possible to get patent protection and at the same time restrict details of the information disclosed in the patent application from public access.
