The concept of patent was there from 16th century. The word ‘patent’ was derived from the Latin word ‘patere’ which means “to lay open”. The British made it in to a codified law. At earlier stages, if a person finds or invents something new he can receive the patent right for 14 years. (14 years to train 2 apprentices back to back with regard to their working model [2 apprentices were not trained simultaneously]).
There was many miniature working models (more emphasis was given to it). The working model is also called “speaking witnesses” because if the judge has a dispute with regard the origin of the invention:
- What he summons is the working model.
- The model spoke for itself as which invention came first.
The miniature working model was kept in U.S- Washington (The historic Old Patent Office Building is now named as ‘The Donald W. Reynolds Center for American Art and Portraiture’ – Museum).
- The number of patent started increasing and the US patent office became a museum.
- Because all the models which is been submitted before has become a ‘prior art’ and these were the times where there was no kind of Documentation.
- But now the patent can be verified by going to https://patents.google.com/
II. How To File Patent In Earlier Times
So the inventor has to go patent office in US. Walk through the corridors of models displayed with names and registered number under it and check how different is your model with that.
As a part of history: US patent office has 3 major fire accidents. The fire destroyed the major models. So the entire ‘prior art’ just disappeared overnight.
- These were pre-photographic times these were not photographed to take them and store it.
- The US patent office started to look on to other means of storage.
- For the litigation to be solved proofs are needed.
- It is much easier to prove if it is documented.
- ‘We know, that witnesses can turn hostile but not patents.’
There was a shift:
Rather than storing the models for which the cost and the process of verifying the two models were high. They also expected to submit the models working in a written form. (Textual representation, scholars say this is “textualisation of invention”).
What was physical is now textual. It has a significant positive contribution namely,
- Multiple copies can be taken.
- Sent to people in the blink of an eye.
- Store it in any form
- Easy to verify on the dot.
- Record keepings.
If a written description about the model is been filed in the patent office it is necessary that you need to produce your actual model. If you make a claim that you have come up with a perpetual machine you need to produce your model (perpetual machine – it is against the laws of physics or it is against the 2nd law of thermodynamics.
- The patent officer will ask you to demonstrate.
- Drawing is a part of patent specific act.
- Though these things solved few problems it did create new problems.
III. Some Of The Problems Is “Patent Trolls”:
The person filing the patent without even actually inventing it. They file the patent (sometimes known as non practicing entities) they know the patent would work but they are not into manufacturing. If someone else manufactures it they would stop them and ask for royalties. It also diluted the act of teaching function. When paten became textualized, teaching method went to an abstraction. Earlier, teaching function was running along with the patent.
Earlier a person can go to the museum and say this particular model won’t work as he is an engineer he might know the technologies. But now only after the patent is granted the questioning happens.US currently has done with 10 million plus patents. Due to textualisation the burden has shifted from the inventor to the third party.
IV. Patent Is A Private Right
When the right is granted it creates ‘right in rem’. One of the disadvantages is that if you read 20 to 30 patents you can create the next one. Museum which was taken over by physical library of documents has transformed into online library with the invention of internet.
- With the advent of internet:
- The library was researchable,
- It was available in all parts of the world,
- Now it is AI (Artificial Intelligence) enabled.
- Patent as a museum
- Patent as library
- Online database.
V. Patent Law Has To Change In Some Point Of Time
- NOVELTY: the invention is new and it is not been disclosed. On today world it is a large machine check as the claim should be anticipated in a single document.
- In future after AI is connected with data base it might ask you please cut and paste your future claim and it might do a real time check for novelty. This is what is known as ‘Machine Novelty Test.’
- FER – First Examination Report that would be the first report that should have been given to the patent.Since if the novelty is done by machines. More emphasis lays on 3rd step (inventive step – whatever you claim should not be obvious (not predictable) to the skilled person/ or the person who is skilled in that particular Art.
- When machine start to invent it, it becomes machine invention. But this inventive step negates a mental element, which machines do not have.
- But we can expect a classification – human inventive step, machine inventive step.
200 years before in America: more than 80% of the jobs were agriculture but now it’s only 1%. With the advent of technologies these will be Para-dynamic shift in everything.
- As the jobs are done by machines there might be claims and counter claims leading to litigation. The cost of verification of a patent is costly and they do only threshold verification. There are 20- 50 hours of human work needed to be spent for denying whether a patent can be given or not. If the patent is in litigation the person spends more than 1000hrs. Of the machines starts to performs well. Then the human being heads to dispute resolution to dispute avoidance.
- When you are not satisfied with the product. They take it from your premiers at their cost and return the money back to you. They don’t challenge.
- Amazon knows if they have to litigation with you then need to spend more amount than the cost of the product. They have data to say to avoid this. They know about their customers, whether they can go to a court or not. They have the complete data.
VI. Procedure To File Patent In India
The above one is the simplified version of the procedure to obtain patent in India:
There has been a dramatic modification within the Patent law System across the globe since its origin and embodiment in law centuries past. The shape of patent has become a lot refined however additionally that the complete method of registration of patents has witnessed a commendable modification. As a result of the recent move towards economic process like globalisation, the procedure for getting patents has additionally shifted towards centralised systems that aim at saving time and costs. Besides, at the same time, with the rising areas of recent technology and inventions, the wants for registration of patents became a lot of taxing and tight. Uncalled-for to mention, economic process has enormously accelerated the evolution and growth of law (both across the country and internationally) and has pulled us to international initiatives towards forming a world patent convention that supports centralized application for all nations within the world. This shall actually save time and prices and result in a utopian regime for registration and grant of patent rights, its protection and lawful exploitation.