World Intellectual Property Organization (WIPO), in 2009, started Technology and Innovation Support Centers (TISC) to outreach inventors and help them improve their research and eventually improve technology commercialization and marketing through various search tools. India formally became part of this program when Department of Industrial Policy and Promotion (DIPP) made an agreement with WIPO on November 13, 2016 for establishing TISCs in India in order to promote IPR culture.
This article examines the exact meaning of the phrase 'Public Domain'. Any Intellectual Property is said to come under public domain when it comes under one of the following1 categories:
- Abandoned Applications
- Cancelled (Withdrawn) Patents
- Successfully Opposed Patents
- Abandoned Patents
- Expired Patents (expiry of the term of 20 years from the date of filing of Patent application)
All the above-mentioned categories allow general public to utilise the knowledge offered by the patent/application for further research or for making profits. The WIPO guides on identifying and using inventions in public domain have been designed to facilitate any person/researcher who wants to use or integrate patent knowledge, available in public domain, to get new products or commercial processes of interest.
How knowledge in public domain is beneficial or why it should be utilised? Following are the benefits that can be accrued if one is utilising knowledge from IPs in the public domain2:
- Involves lesser investment of time and money in developing new product and/or product improvements to add value to inventors'/entrepreneurs' products and services;
- Minimize the risk of infringing others' IP rights;
- Can be utilized to help in the commercialization of ideas, inventions and new services and/or product offerings;
- Use or duplication is not governed by any IP regime;
- Can help the readers to make more informed management decisions regarding an invention and its future market potential.
As per the 'Guide on using information in public domain', public domain has been described as a function of geographical region and time and is given by the below mentioned formula:
Public Domain3 (g,t) = U – P – C – M – ID – O + S
Wherein, g = Geography; t = Time; U = Universe of known and freely accessible information; P = Patent rights; C = Copyrights; M = Mark rights; ID = Design rights; O = other rights (e.g. geographical indications, plant breeder's rights, mask works, utility models, databases, explicit traditional knowledge); S = previously secret information
While evaluating Patent rights (P), emphasis should also be given to utility models and those patents which are granted but are not enforceable owing to some legal ambiguities. Such patents may seem insignificant; however, it should be kept in mind that these do not pose any threat till they are under such legal ambiguities but infringement suit can be imposed as and when they become fully enforceable.
Collectively, the above expression defines public domain specific for a given region (g), IPR being territorial in nature, at a given point of time (t).
According to 'WIPO IP Facts and Figures 2018', there were 13.72 million patents in force worldwide in 2017, of which around 2.98 million were in force in the United States of America (U.S.), 2.1 million in China and 2 million in Japan4. It is pertinent to note that majority of the patents in force are in developed countries and by the virtue of patents being territorial in nature makes them readily accessible in other countries where it is not protected5. Subsequently, such information can be utilized by opportunists to leverage their innovations into new products and commercialize them in market.
Accessing Public Domain Knowledge: Public domain knowledge can be accessed through online or offline modes. Offline mode includes searching patent documents available at patent offices. This mode is time consuming and less efficient in getting relevant documents and thus, is less preferred. The preferred mode of accessing patent information is online mode. Various online databases, accessible through digital platforms, are available which provide information on IPs in public domain. But this mode is highly variable and differs from one jurisdiction to the other owing to the kind of digital services prevailing in the region.
Searching for whether a patent is in public domain or not is a task easier said than done. Mostly databases supported by Regional Patent Offices do not provide any direct option and one needs to click open every patent to check its validity. To ease researchers in finding unenforced patents, Yuenyong Nilsiam, a Ph.D. student at Michigan Tech, has come up with an open source database, the working of which has been well explained in a paper titled 'Open Source Database and Website to Provide Free and Open Access to Inactive U.S. Patents in the Public Domain in Inventions'6. Even NASA has its database making information of their expired patents available for researchers and general public7. However, the same can also be done individually through certain databases which offer refining search by selecting suitable time period in search results.
As evident from the above discussion, public domain serves as a reservoir of freely available knowledge for the researchers and inventors. Therefore, it is very important to consider searching the relevant public domain knowledge using available tools before marketing or commercializing a product or process, in order to get wider benefits.
1 WIPO Guide on Using Inventions in Public Domain
2 WIPO Guide on Using Inventions in Public Domain
3 WIPO Guide on Using Inventions in Public Domain
4 WIPO IP Facts and Figures 2018. Available at: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_943_2018.pdf
5 WIPO Guide on Using Inventions in Public Domain
6 Search this database for inactive patents that are now in the public domain. Available at: https://opensource.com/article/17/1/making-us-patent-system-useful-again
7 NASA Makes Dozens of Patents Available in Public Domain to Benefit U.S. Industry. Available at: https://www. nasa.gov/press-release/nasa-makes-dozens-of-patents-available-in-public-domain-to-benefit-us-industry
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.