To Patent or Not- The Double Edged Sword

Patent; one of the most sought after word in the Intellectual Property trade lately, everyone in some corner of the world is coming up with a new invention and innovation. So, do they need to patent it? And if yes, what are the parameters one must gauge before investing money in an idea? These and many more such questions remained to be answered which leaves an innovator quizzed. This is why we came up with this – To patent or not to patent – taking the wise decision.

First of all, you need to understand what a patent is, in literal sense. As per World Intellectual Property Organization (WIPO), patent refers to an exclusive right granted for an invention, which is a product or a process that provides a new way or method of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention needs to be disclosed to the public in a patent application.

Now, if you have made up your mind to apply for a patent you must understand what patent provides for you as an innovator. A patent gives the owner the right to stop anyone else using that particular invention. Among many other things, in India as per The Patents Act, 1970, here are few specific things which cannot be patented; like any invention which is termed as frivolous or claims to be anything contrary to established laws of nature, any agricultural method, any medicinal process like surgery or any curative therapeutic process for treatment, any business method or computer program. More so, it mentions clearly that no patent can be granted when it comes to any invention relating to atomic energy which falls under Atomic Energy Act, 1962.

The above deals with the Indian part, when we broadly talk of the global scenario, there are three categories into which patents can be awarded; utility patents, design patents and plant patents. So, you’ll have to determine your patent category; if your patent doesn’t fall into any one of those; then you’ll need to further improvise on your invention or seek advice from experts.

Any individual coming up with an invention will have a baggage of questions in mind before marketing your invention like how to obtain patent for the invention? Is the invention patentable? Can an individual file a patent by self? There are certain set of guidelines known to the patent practitioners to help the inventors with these questions to sail them through.

To begin with, a documentation of the invention is a must, like a record of the invention which is often named lab notebook? It contains the entire information relating to your invention like area of invention – detailed description of what it is, how it works, advantage of invention along with any sketches, drawings or photographs of the same.

The inventor should have signatures and date on all pages of the lab notebook by his/her superior guiding his invention. It is important to disclose these all points of the invention to patent attorney/patent agent for obtaining a patent.

Whether, you like this or not but you need to test if the invention is patentable or not; as all the inventions may not be eligible for patenting. Like, the few points we mentioned above cannot be patented; algorithms, mathematical method, mental act, traditional knowledge and atomic energy are not patentable in India. In addition to these, software inventions area are sensitive topic of discussion, more particularly computer program per se is not patentable in India. There are certain requirements which your invention must meet like novelty, non-obviousness (can be termed as inventiveness) and industrial application or usefulness.

Herein, when we speak of novelty, it comes down assessing it in a global context. An invention will cease to be novel if it has already been disclosed in public through any type of publications anywhere in the world before filing a patent application. Inventiveness involves an inventive step if the proposed invention is not obvious to a person skilled in the art. If there is an inventive step between the proposed patent which is being filed and the prior art at that point of time, then an invention has taken place.

The last point is equally important as the invention must possess utility or usefulness for the grant of patent. No valid patent can be granted if the invention is devoid of utility.

After all this, you still need to conduct a patent search and find out whether your product is already patented or not. For this, you can always take help of the experts like a registered patent attorney or agent who knows how to work in alignment with the patent system. Alternately, you can always conduct a patent search online.

In line after this, it’s your decision whether you wish to file a provisional or a non-provisional patent application. After all this exercise too, the plain fact is, a patent is surely a valuable tool, but it's hardly your number one ticket to success. Because, only 2-3 percent of all patented products ever make it to market. So, if you think in terms of money and returns, it’s you who needs to take a wise and calculated risk. So, before you invest your finances in securing a patent, there are steps you should take to ensure that it's a smart business move.

So, before you decide to move ahead with a patent, it's very critical to first evaluate your idea as a viable business opportunity. You must have a complete understanding of your product or process, your target market and your competition to the best evaluation. As many inventors patent their ideas and never take them to market and on the other hand there are thousands of products in market today which aren't patented or even patentable at all. Hope this makes it clear to you, whether your idea is patentable and whether it’s worth the effort.

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