Can everything be patented or copyrighted?

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Patents and copyright provide exclusive rights to different types of Intellectual property. Everything is not eligible for patent or copyright protection; they may be eligible for different other types of intellectual property protection. In some cases, it may not qualify for any of the intellectual property or may be statutorily excluded from the eligibility to get intellectual property.

Copyright is exclusive right to do or authorize others to do certain acts in relation to literary, dramatic or musical works; computer programme; artistic works; cinematograph film; sound recordings. This rights extends to acts not only to the whole of the work, but to any substantial part thereof or to any translation or adaptation thereof. However, Copyright does not protect functional aspects, ideas, processes, or methods.

Patents provides an exclusive right to use or exercise an invention granted for a limited period (term of patent i.e., 20 years from the date of first filing) in consideration of disclosure of the invention. Section 2(l)(j) of Indian Patents Act, 1970, defines "invention" as a new product or process involving an inventive step and capable of industrial application (Positive requirements); whereas section 3 and 4 of Indian Patent Act 1970, provide exceptions (negative requirements) to patentability. Section 3 lists excluded subject matter for patentability; and Section 4 excludes invention related to atomic energy.

The inventions which are not patentable as per Section 3 and Section 4 of Indian Patent Act 1970, are as follows:

Inventions which are frivolous and which are contrary to well established natural laws. For example, Inventions which does not have any basis such as, invention claiming an engine which does not require form of or source of energy , is against well established natural laws, are thus frivolous and are hence not patentable.

Inventions whose intended use is injurious to public, animal or plant life and health, or inventions whose intended use is contrary to public order or morality are not patentable inventions. For example, inventions such as devices whose intended purpose is house breaking shall create public nuisance and law and order issues, which shall be impediment/harmful to national economy and development, therefore such inventions are not patentable.

Inventions which are mere discovery of a scientific principle, living thing or non-living thing or inventions which are formulation of abstract theory are not patentable. Discovery is not considered as invention because there is no technical advancement contributed by claimant of the invention. Invention is making of something new and novel, or which is improved version of the existing product or process. Discovery is finding something that already exist in the environment but was not known to the public. For example, discovery of new trace element in nature is not patentable. However, the use of the discovered new element in manufacture of other new product or process, may be patentable.

The mere discovery of new form, property or use of a known substance which does not result in the enhancement of known efficacy of that substance or mere use of known process, machine or apparatus unless such known process results in production of new product or at least involve one new reactant is not patentable. In order for invention to be patentable, it should be new and unique. If the efficacy of new form of known substance is not substantially better than the known substance, then they are practically same and they are not unique. Therefore, they are not patentable.

Mere admixture of known substances which results in aggregation of properties is not patentable. If the admixture of known substances creates a synergistic effect i.e., if the effect of the mixture is greater than the separate effect of elements mixed then it will be patentable invention.

Mere arrangement or re-arrangement or duplication of known devices which are working independently of each other is not patentable. If the arrangement of known devices results in formation of a new device or in other words if the arrangement of known devices work dependently on each other with improved efficiency or provides additional benefits can be patented. For e.g. mere arranging a phone, internet device and camera in a single device, in which all 3 things work independent of each other, is not patentable. However, a device is created in which internet, phone calls and camera work together with improved efficiency and convenience, then that device may be patentable.

The method of agriculture or horticulture are not patentable.

Any process for the treatment of human beings including surgical, medicinal, curative, diagnostic, therapeutic, prophylactic process or any process for the treatment of animals or for increasing their economic value or of their products is not patentable as they lack industrial application.

Any plant or animal, wholly or in part, including their seeds, varieties and species are not patentable. Further, essentially biological processes for the production or propagation of plants and animals are also not Patentable. They are protected by Protection of Plant Varieties and Farmers' Rights Act, 2002. However, genetically modified micro-organisms are patentable.

Any mathematical method, business method, computer programs, algorithms per se are not patentable. However, the technical result they achieve which incorporated in any device may be patented.

Any work such as literary or dramatic work, which are protected by Copyrights Act are not patentable.

Any mere scheme, rule, method of performing mental act or method of playing a game are not patentable as they are not inventions. For e.g. rules for playing UNO are not patentable as they are outcome of mere mental work.

Any method of presenting any kind of information is not patentable.

Anything which is covered by Semiconductor Integrated Circuit Lay-out Designs Act, 2000 is not patentable.

Any invention which is part of traditional knowledge is not patentable. Traditional knowledge is knowledge that is already known to the public.

Any invention which falls under Section 20(1) of the Atomic Energy Act, 1962 is not Patentable.

To summarize, both patents and copyrights are different types of Intellectual Property but everything cannot be protected by a patent or a copyright protection. It is always advised to consult Intellectual property expert who will ascertain the type of intellectual property protection your work is eligible for, and proceed with your consent in obtaining it depending upon your requirements.

We hope we have answered all of your question.

Thanks & Regards,

Delhi Intellectual Property LLP

Phone: +91-9911456111 / +91-9911984111 / +91-9911860111

Website: www.delhiip.com

Email: info@delhiip.com | patent@delhiip.com | design@delhiip.com | trademark@delhiip.com | copyright@delhiip.com | litigation@delhiip.com

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