By Varun Singh Ahuja
Necessity being the mother of invention, patent laws in the US have been evolving to meet the needs of changing situations in a world grown unimaginably competitive and keeping in view the dual purposes of protecting invention from plagiarism and encouraging innovation by not overdoing the patent regime.
Patents typically reward inventors with fame and glory and also the monetary benefits derived from the sale of such inventions. Stories of machines and processes discovered in garages and the inventor making millions from the sale of such inventions are not just the stuff of romantic stories but facts that have inspired many would-be inventors. Many of these machines and processes are an improvement on existing devices.
Legal protection of an invention or discovery with a patent that grants the inventor or discoverer the right to benefit from it for a limited period of time recognises their right to the fruits of their intellectual effort.
Without such protection the inventor may become overprotective of the invention and deprive humanity at large of its benefits. The fear of copying and being deprived of both fame and profits is a real one. An example of the fear of copying preventing many medications from being sold openly and even subjected to rigorous scientific testing is the local fame that some medicine men and women enjoy in many places including towns in India. Stories of closely guarded local mixes of herbs used to treat certain diseases abound in the country.
These secret formulae are handed down to successive generations in the family till they die out. They are neither available for scientific testing nor for more popular disbursal in case they prove effective. A sensible patent protection regime can protect not just the inventor but also public at large by curbing the fear of copying and making inventions available in the public domain.
All advanced economies recognise the significance of patents. The United States of America passed the ‘Patent Act of 1790’ as far back as the late eighteenth century as the title itself tells us. It was probably the first modern law in the world that granted protection to the inventor and a monopoly to the inventor over the invention for a certain period of time. India after much resistance passed its first patent law in 1970 which is pretty much based on the Patent Act of United States of America.
However, patent protection cannot be interpreted to mean that any improvement of a patented product is made so expensive or any innovation so costly that creativity is seriously curbed if not brought to a standstill. All laws and systems must walk a fine balance between protection of intellectual property rights and encouragement of innovation that may impinge willy nilly on protected rights. In this context, the US has seen some interesting changes in its patents systems and even laws.
Laws are mere texts open to interpretations and judicial interpretations go a long way in changing the tone and tenor of laws. Some important decisions by US Supreme Court have changed the Patent System of the US that has in its turn led to changes in the world essentially because the US patent regime is generally taken as a model that other countries may or may not want to emulate.
One of the major changes in the US Patent law is in registration of the patent. Earlier, the US used to follow the system of granting patents to inventors who first invented a new and useful technology. Things however changed in March 2013 after the enactment of ‘American Invention Act’. Now the US federal government has changed the law to the ‘First to File’ system. This means the date of actual invention is no longer of relevance. The first person who first applies for patent can get it without having completed the process of actual invention. Essentially it means that the patent will be granted to those who first file the patent application, regardless of their date of actual invention.
The Second Major Change in the United States Patent Law
The second major change in the United States Patent Law was effected by the decision of the Supreme Court in the case of KSR International Co. v. Teleflex, Inc. In this case Teleflex sued KSR claiming that one of the KSR products violated its (Teleflex’s) patent. Eventually the case landed in the Supreme Court that ruled in 2007 that the claim could not be sustained. The Court held that the KSR product had combined two elements and therefore could not be said to have infringed the patent of Teleflex.
The Supreme Court changed what in patent laws is known as the Principle of Obviousness. Basically it means that an invention has to be ‘new’, something that is not obvious to people with ordinary skill, but beyond it to justify monopoly rights for profit and patent protection. In common parlance any ‘jugaad’ cannot be patented.
Before this decision an invention was considered obvious only if the prior art contained a teaching, suggestion or motivation that would have led a person of ordinary skill to have made the invention. The decision of KSR has changed the Principle of Obviousness. The Supreme Court has said that persons of ordinary skill are not automatons, but persons of ‘ordinary creativity’, with the capacity to appreciate obvious uses of familiar items, and combine those items to solve obvious problems. In simple words the Principle of Obviousness has been changed to that which is obvious to a person of reasonable skill and knowledge who can predict the invention. Such inventions have now become unpatentable.
The Third and Most Important Change
The third and most important change in the patent system is the inclusion of the Doctrine of equivalents. This is the doctrine enclosed in United States Patent Law to identify infringement of the patent. According to this doctrine individual elements of the invention will be compared to identify the infringement. It leads to the comparison of each and every claim made by the patentee in the invention with the product of the infringer. It means that not just individual elements in the invention but also the invention as a whole is considered, so an infringer cannot escape the law by substituting one element with another that is not patented.
First in Line Gets Protection First
These changes made by the United States in the Patent system led to revolutionary changes in the patent systems in the world. In India, although the patent law was enacted in 1970, the Patent system is not yet developed enough to meet challenges. In India we have to depend a great deal on the United States of America for changes made in the Patent Act to meet changing needs of changing times.
The policy of ‘first to file’ system was adopted by the United States in 2013, although other countries, except Canada and the Philippines, had had it earlier. After the enactment of the American Invention Act of 2013, Canada and the Philippines have also followed suit. The first to file system is now the norm the world over.
The decision in KSR has also brought in major changes in the registration of patents. Thanks to this decision there has been a rapid decline in the number of patents registered by the PTO (Patent and Trademark Office). It helped in reducing monopoly practice, making room for work which an ordinary person of reasonable skill and knowledge will be able to perform.
One of the most essential problems in today’s world is that of infringement of patent and the Doctrine of equivalents has helped in testing claims of infringement.