Patents Among the Intellectual Properties

And a plant variety has its own statute. The Protection of Plant Varieties and Farmers' Rights Act 2001 registers new plant varieties and gives farmers rights over seed. It exists because section 3(j) of the Patents Act excludes plants, so India needed a separate system to meet TRIPS article 27(3)(b). Chapter 100 works that through.

A trade secret is not registered at all

India has no trade secrets statute. Confidential commercial information is protected by the law of contract, through a non-disclosure covenant, and by the equitable action for breach of confidence. There is no registration, no term and no monopoly against an independent discoverer.

That is the real alternative to patenting, and it is a genuine strategic choice. The formula for a soft drink has been kept as a trade secret for over a century and would have been in the public domain decades ago had it been patented. Chapter 20 works through the trade-off, and the summary is: a patent buys twenty years of protection even against an independent inventor, at the price of teaching everybody how to do it; a trade secret can last for ever but dies the moment somebody works it out honestly.

A worked example

Meera Iyer designs and sells a water bottle. Four separate rights are in play and each is obtained somewhere different.

The self-sealing valve inside the cap is patentable, if it is new, involves an inventive step and can be made in an industry. She applies to the patent office and waits years.

The curved fluted shape of the bottle is a design, registrable under the Designs Act 2000 if it is new and appeals to the eye. It is not patentable, because an aesthetic creation is excluded by section 3(l) and because shape as such is not a technical solution.

The name "Aquilo" on the label is a trade mark, registrable under the Trade Marks Act 1999 in class 21 and enforceable in a passing off action even before registration.

The instruction leaflet and the photographs on her website are copyright, arising automatically the moment she writes and takes them, with no registration needed.

Change one fact. Suppose the fluted shape is not decoration but is what makes the bottle grip a bicycle holder. Now it is functional, which takes it outside the Designs Act's definition, and it may be claimed in the patent as a feature of the invention. The line between the two rights is exactly the line between what a thing looks like and what it does.

What it does NOT mean

It does not mean the rights are alternatives. They overlap constantly, and a well-advised business takes all four.

It does not mean a patent is the strongest right. It is the shortest, the most expensive, and the only one that requires you to publish your secret. For a brand, a trade mark renewable for ever is worth far more.

And it does not mean copyright covers software but patents never can. Software is a literary work for copyright, and section 3(k) excludes a computer programme per se from patenting, but Indian law does allow patents on inventions that use a computer programme and produce a technical effect. Chapters 100 and 1240 work through it.

Quick revision

Patent: new, inventive, industrially applicable product or process; 20 years from filing; granted after substantive examination.

Copyright: original expression; arises on creation, no registration needed; life plus 60 years for a literary work.

Trade mark: a distinctive sign indicating origin; 10 years renewable for ever; passing off protects even unregistered marks.

Design: the visual features of an article; 10 years extendable by 5; must be new and appeal to the eye.

Geographical indication: a community right in a name tied to origin. Layout design: its own 2000 Act, kept out of patents by section 3(o). Plant variety: its own 2001 Act, because section 3(j) excludes plants.

Trade secret: no statute, no term, no monopoly against an honest discoverer.

Test yourself

1. Give three differences between a patent and a copyright. A patent needs absolute novelty and an inventive step; copyright needs only originality. A patent must be granted after substantive examination; copyright arises on creation. A patent lasts 20 years from filing; copyright in a literary work lasts the author's life plus 60 years.

2. Which provisions of the Patents Act keep artistic works and chip layouts out of the patent system? Section 3(l) for a literary, dramatic, musical or artistic work or any other aesthetic creation, and section 3(o) for the topography of integrated circuits, which are registered under the Semiconductor Integrated Circuits Layout-Design Act 2000.

3. Why might a business prefer a trade secret to a patent? Because a trade secret has no term and never requires disclosure, so it can outlast twenty years indefinitely. The price is that it gives no right at all against a competitor who reverse engineers or independently discovers the same thing.