I.D.E.A.S. - How to protect them under Intellectual Property Rights in India

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Earl Nightingale, the popular American radio speaker and author once said, “Everything begins with an idea”. It is a privilege for the entire humankind to be gifted with an extraordinary power of cognizance and thinking vis-à-vis the human brain. The frontal cortex within the human brain has long been thought of as the hub or center of creativity, as it seems to be responsible for many of the functions that contribute to creative thinking.

Some philosophers consider ideas as results of thought, while others consider them as mental representational images of some object. Many philosophers have considered ideas to be a fundamental ontological category of being. The progression and evolution of the human societies and the modern civilizations have all been resulted from extraordinary ideas and thinking by humans.

Fig. The moment where the idea of gravity first struck Sir Isaac Newton

History is filled with examples of discoveries and ideas that were initially rejected before being accepted as the norm. Irrespective of that, ideas are the prime exponents for innovation, modernization and well-being through ease of living. In a letter to Isaac McPherson, Thomas Jefferson famously stated that if nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

In contemporary times, intellectual protection tools such as patents, designs or models, trademarks or copyrights can protect the materialization of an idea. However, the idea cannot be protected as such under Intellectual Property Rights (IPRs). The following is a brief description on the scope of protecting ideas through the particular forms of IPRs in India.

A) COPYRIGHT

Section 13 of the Indian Copyright Act, 1957 grants protection to the following works: original literary, dramatic, musical and artistic works; cinematographic films; and sound recordings. However, the scope of copyright protection does not extend to mere ideas, but only to the material form in which the ideas are translated. For instance, two authors may have the same idea for a book, but the way they express themselves i.e., the way they put down their idea in a tangible form is what makes a difference and can both be granted copyright protection for their works independently. Although copyright infringement cannot be accounted for separate expressions of similar ideas, there are ideas that can be expressed in only a particular way. In every such case where the expression is necessary to effectively communicate an idea, the courts have applied the Merger Doctrine to find that no copyright subsists.

Fig. The printed patent drawing for a typewriter invented by Christopher L. Sholes, Carlos Glidden, and J. W. Soule.

Although copyright protects literary and artistic works, it does not protect innovations. Thus, the technical aspect of an invention developed on the basis of an idea cannot be effectively protected using copyright. For instance, a book published using a typewriter machine can be sought for copyright protection, but the typewriter machine cannot be sought for copyright protection.

B) PATENTS

The Patents Act, 1970 provides patent protection for novel and unique inventions having technical features and satisfying the patentability criteria as stipulated under the Act. For an idea to be protected within the Patent laws, it is essential that the idea should not be ambiguous and vague. The mere idea cannot be protected but when the idea is concrete with enough specificity and one has a strategy to describe it and its functioning, making it an asset valuable enough to be protected, then such an idea can be protected.

  • Section 3(c) of the Patents Act, 1970 excludes mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature from patenting.
  • Moreover, Section 3(k) of the Patents Act, 1970 excludes a mathematical or business method or a computer programme per se or algorithms from being patented.
  • Further, Section 3(l) of the Patents Act, 1970 excludes literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions from patenting.
  • Additionally, Section 3(m) of the Patents Act, 1970 excludes a mere scheme or rule or method of performing mental act or method of playing game from patenting.
  • Also, Section 3(n) of the Patents Act, 1970 excludes a presentation of information from being patented.

If an idea has the potential to be performed and one has the method and process for its working, then the idea has the possibility of changing into an invention and thereby can be applied for a patent through a provisional patent application. Such an idea disclosed through the provisional specification can further be worked out with a technique for its performance within 12 months of filing provisional application and then the complete application may be filed. However, if the complete specification is not filed within the stipulated time period, the patent application may be rejected and be held invalid on the grounds of insufficient description of the invention or the method.

Fig. After the provisional application is filed, the patent office issues a receipt on which date of filing or priority date is stated the invention can be marked as “patent pending” or “patent applied for” as a warning or a notice, meaning that patent has been applied for but not yet granted.

C) TRADEMARK

Section 2 (zb) of the Trade Marks Act, 1999 provides for a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours to be called as a trademark. A trademark can be used creatively to protect the materialization of an idea, although not the mere idea itself. Example, the shape of the Coca-Cola bottle, the trade name “Coca-cola”, etc. are all trademarks.

Fig. The Coca-cola bottle design trademark

D) TRADE SECRETS

A trade secret is information that has economic value from being kept secret and that is the subject of reasonable efforts to keep it secret. The owner of a trade secret may sue anyone who misappropriates (wrongfully acquires, discloses, or uses) the trade secret. Although, mere ideas cannot be protected as trade secrets, when an idea or design concept that could be patented is kept secret, that idea or design concept can be treated as a trade secret. In general, any confidential business information which provides an enterprise a competitive edge and is unknown to others may be protected as a trade secret. Trade secrets encompass both technical information, such as information concerning manufacturing processes, pharmaceutical test data, designs and drawings of computer programs, and commercial information, such as distribution methods, list of suppliers and clients, and advertising strategies. Eg. the Coca-cola recipe is a popular trade secret.