Must all innovation/inventions be patented? – Defensive
Patents have always been the means of protecting your inventions
against unwarranted use. Patenting your invention prevents a person
from using your invention without your permission or from getting a
patent on your invention.
A patent endows the owner of the patent with an exclusive
right for a limited period of time to prevent others
exploiting the patented invention without permission. This, by far,
is the greatest advantage of patenting your innovation.
However, there are a lot of considerations that arise when you
are thinking to patent your innovation. The foremost consideration
is the cost of patenting your innovation. What if you do not want
to incur the expenditure of patenting your inventions and yet want
to use your inventions in the public domain?
Defensive publication is the strategy. Still in its nascent
stage in India, a defensive publication is a very important tool to
prevent others from getting a patent of your invention.
What exactly is a defensive publication?
A defensive publication is a preemptive disclosure of an
invention so that it enters the public domain. In simple words, you
have an innovation that you do not want to patent. But, you want to
disclose it to the public while ensuring that nobody else can
patent your innovation/inventions. That is when you resort to
This ensures that nobody can get a patent right over the
innovation as the defensive disclosure will now become prior
Importance of defensive publications:
The most important aspect of a defensive disclosure is that it
is the least expensive means of ensuring continued freedom of use
of an innovation. It enables the public to use your inventions.
Sometimes on a cost-benefit analysis, you realize that patenting
your inventions could be more expensive than the benefits that you
can reap for patenting it. Defensive disclosure is the best
strategy for freedom to operate and commercialize your innovative
Defensive publication allows placing prior art in the public
domain that prevents the possibility of non-infringing substitute
technologies from getting a patent.
How to materialise a defensive publication?
Before deciding on a defensive disclosure you must be
absolutely sure that you want to relinquish all potential
patent rights you have on the inventions. You need to ensure that
your defensive disclosure has a publication date that can be
reliably determined. This is important because the defensive
publication will serve as a prior art.
Another important point to keep in mind is to ensure that the
description of the innovation is enabling. In the sense
that, any person who is skilled in the relevant field must be able
to effect the innovation without undue effort.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
Department of Industrial Policy and Promotion recently issued an office memorandum pursuant to receiving representations from various stakeholders for guidance with respect to the applicability of the provisions of Section 31D of the Copyright Act, 1957.
An Invention Disclosure Form is the documentation of the invention. This is a means to document particulars of your invention and submitting it to the patent attorney who is filing your patent application.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
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