INDIAN METHOD PATENTS
The US Supreme Court’s recent decision in Bilski v. Kappos has implications for business method patents in India, says Anuradha Salhotra.
Businesses are in a continual state of change, adapting and responding to the needs of society. With the advancement of technology, businesses have become more complex and highly specialised. In recent years, businesses have needed to adapt to the onset of the information age, which has changed traditional norms of doing business. Businesses have emerged that combine technology and innovation with more traditional business methodologies. Concurrently, a relatively new class of patents has matured: business method patents that have existed for several years, but have only recently become universally important.
Business method patents deal with new and innovative methods of conducting an economic activity and are regarded as part of a larger family of utility patents.
Patent law has developed over centuries in response to scientific and technological developments that have led to the creation of products that have, in some manner, contributed to the present state of technology. Patents are generally understood to mean monopolistic rights granted by the state to individuals or inventors to exclusively use and exploit an invention for a limited period of time. As far back as ancient Greece, the importance of such exclusive rights was recognised, and patents,
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as understood in the modern sense of the word, have existed in various places since then.
A patent has been described as pertaining to “any new and useful art, machine, manufacture or composition of matter and any new and useful improvement on any art, machine, manufacture or composition of matter”. Over the years, a new form of patent has developed, granted to new and innovative methods of doing business. Tese patents have been granted in jurisdictions including the United States, Australia, Japan and Singapore.
Te TRIPS Agreement, which provides signatories with a principle framework for protecting and enforcing intellectual property rights, does not specifically deal with this class of patents. However, Article 27 states that, “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application...”. Tis means that if all other criteria are satisfied, even a business model may theoretically be protected by patent law.
In India and China, protecting business methods is difficult. But why is this the case? Te principles behind patent law, in general, deal with protecting new inventions or improved machines or articles. Simply put, according to the traditional principle
of patentability, an invention can be protected if it results in something tangible and satisfies the patenting criteria.
Most countries specifically prohibit protection for discovery of scientific principles, while ideas are also considered non-patentable until they are tangibly applied. How then, do we justify business methods getting patent protection?
A business method can be understood to mean “a method of operating any aspect of an economic enterprise”. Tus, it clearly does not qualify as a tangible invention. However, should this business method otherwise fulfil the criteria for patentability—that is, novelty, inventive step or non-obviousness, and industrial applicability (utility)—it may be granted protection for being an improvement on the present state of the art. It is also crucial to note that the TRIPS Agreement specifically says that patent protection must not be limited by industry, by referring to “any inventions, whether products or processes, in all fields of technology”.
Financial patents, for example, pertain primarily to industries such as e-commerce, banking, insurance, etc. To not protect new modes of doing business in those industries, especially when they have tangible results, would be in derogation of
World Intellectual Property Review September/October 2010 57
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