Author: Shubhangi Khandelwal, IV Year of BLS.,LL.B, from KES Shri Jayantilal H Patel Law College.
Introduction
Innovation requires due credit to be given to the innovator/ designer/ creator. Due credit and protection of inventions in law for technology and other products comes with the registration of trademarks, patents, copyright, etc., which forms the Intellectual Property (IP) for a business. Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Through such registration, the inventor gets the sole right over his or her invention for a certain period of time, giving valuation to his business and invention in the market.
Technology Landscape in recent times
The impact of technology on commerce is undeniable. Every development and replacement has brought benefits for businesses. Bank deposits have been replaced by online NEFT transactions, fax machines have been made obsolete with the introduction of emails. Digital transformations have grown 3 folds, with artificial intelligence, machine learning, automation, etc. Investors and businessmen are pouring money into this profitable field of technology. According to a forecast, by Garner, IT spending in India will total US$94 billion in 2020, up from US$88.5 billion in 2019 (an increase of 6.6%). This data factoid and the table below indicates the fruitful blend of technology and commerce.
Disruptive Technologies
The world today is experiencing an avalanche of technological inventions at staggering rates. This massive growth is not expected to reduce in the near future, affecting every process, every aspect of our lives. Technology has raised the stakes in the business segment, leaving every businessman and investor with the desire to compete fiercely to obtain or be the first inventor in the market for the software algorithm or hardware that has the potential to drive the entire business on the pathway to success. Technological leaps and creations have proven to be instrumental in transforming the look of businesses and even generating new types of businesses. Technology has come a long way, from train locomotives in the the 18th century to the Internet of Things (IoT) in the 21st century.
Looking at the concept of Disruptive Technology from a simplistic approach, disruptive technology renders older products, software and processes obsolete, and, in the case of businesses, it can put old or replaced business ideas and ventures out of the market. For example, in the 1990s, fax machines were widely used for business communications, inside the office premises and to other companies as well. Every staff member or high-ranking officer had a particular fax number for use at his disposal, using it to send documents and important messages across. As time went by, people got internet connections and desktop PCs which made professional communication easier with the use of electronic mail or e-mail. E-mails made fax machines outdated. Let’s consider another aspect. In the market of real estate, sellers would put advertisements for sale in the newspapers to attract potential buyers or would spread the word about the need for a buyer through brokers. Brokers had an opportunity to earn brokerage through a successful deal between the buyer and seller. Over the decades, with the prominence of the internet, sellers are now able to upload advertisements online, on websites dedicated to real estate, thus saving costs of advertisement in newspapers, paying brokerage and nullifying the need for brokers. These are two of the thousand examples that show how disruptive technology alters the operation of a business or industry or workmen.
Competitive advantage of Patents for Companies
There is a relatively new concept to describe the process undertaken to bring advantages to companies via patent protection: Patent Intelligence. It is the devised term for the process of combining in-depth patent research & legal counsel to make business decisions and patent portfolios for the company. This process provides for a thorough analysis of the existing patent portfolios in the rival businesses, it reveals new technological trends and assesses the best way to protect the innovation through patents. It also helps discover the economic potential arising from the registration of patents. A combination of secure registered patents, a catchy brand name, effective advertising and marketing will create a rock-solid base for the business to trade and earn extraordinary profits till the time the patent does not expire. Therefore, patent intelligence carves its niche as an integral part of company strategy.
Important Precedents
Case law: NovartisAG v/s Union of India (Civil Appeal No. 2706-2716 of 2013)
In this landmark case, Swiss pharmaceutical company Novartis had filed an application to patent Glivic, an anti-leukemia drug. The application was rejected by the Assistant Controller General of Patents, Designs, and Trade Marks. Subsequently, the company appealed against the order, but no relief was obtained. The case reached the Honorable Apex Court, and the judgement was ruled against Novartis. The Supreme Court opined that the practices of Novartis were “unconstitutional patent law practices”. The Apex Court held that Novartis had failed to meet the requirement of novelty and test of invention as mentioned in Section 2 (1) (j) & (j) (a) of the Patents Act 1970. The judgement in this case sets an important precedent in intellectual property cases.
Case Law: G. Anand v/s Delux Films&Ors (AIR 1978 SC 1613)
In this landmark case, Writer R.G Anand had written and produced a play called “Hum Hindustani” in the year 1953, which achieved grand success. Post the play, in the year 1955, there were discussions held between the Appellant and the Respondent to film the play. With the passage of time, there were no further talks held between the two sides, but the respondent went ahead to make the film. On the basis of this, the appellant filed a suit for copyright infringement. The Honorable Apex Court held that copyright cannot exist for an idea, subject matter, themes, plots or historical facts. Infringement only relates to the form, manner and expression of the idea by the creator of the work.
Case Law: Diamond v/s Diehr (450 US 175 SCOTUS 1981)
In this landmark decision, a patent application was filed for “a process for molding raw, uncured synthetic rubber into cured precision products”. The patent examiner had rejected the application on the grounds that the steps performed by a computer programme are unpatentable. After various appeals, the matter came to the Supreme Court. The United States Supreme Court ruled that the running of a computer programme which controls the execution of a physical process can be patent-eligible. The invention should meet the requirements of attaining a patent— “transforming or reducing an article to a different state or thing”.
Case Law: Bayer Corporation & Anr v/s Union of India & Ors
In this landmark case, Bayer Corporation filed an inventive writ petition in the Delhi High Court in an attempt to link drug approval to patent infringement. Bayer Corporation claimed that the application of Cipla’s “SORANIB” infringed its patent, so the marketing approval application as per the Drugs Act should not be processed. Bayer Corporation based their arguments on a combination of Section 2 of the Drugs and Cosmetic Act along with Section 48 of the (Indian) Patent Act, 1970. The Delhi High Court held that there is no Drug-Patent Linkage in India as the acts have different objectives and authorities.
Case Law: Bajaj Auto Limited v/s TVS Motor Company Limited (S.L.P no. 13933 of 2009)
In this landmark case, there was a dispute in relation to a patent application of DTSi (twin spark plug engine technology). This case was decided keeping in view the Doctrine of Pith and Marrow/ Doctrine of Equivalents. The Honorable Apex Court also directed swift disposal of cases involving Intellectual Property Rights.
Analysis
The precedents above signify the court’s stance in the field of IPR. The court values the time, the inventor and tends to widen the scope of patentability depending from case to case. Along with that, the court does not support malpractices and vexatious complaints which only result in a waste of the court’s time. Indian and US legislations support the inventors and companies of the patents, providing protection and suitable reliefs when necessary. The law of IPR has to modernize and change as per the inventions that come into the world in the course of time.
Conclusion
It is no hidden secret that technology dominates every sector it steps into, it possesses the ability to change the course of water, as the English proverb says. Technology and the advancements cannot be ignored, people can only adapt to it. Technology is the current and next big thing, there is no possibility of the rate of innovation to slow down. There is a cut-throat competition with the chances of technology being obsolete at the speed of light. Adaptation and creativity in the field of business will help businesses achieve success and power in the industry.
At the same time, the law of IPR needs to adapt and develop in line with the advancements, otherwise it leaves a scope for misuse, rip-offs, unnecessary litigation, infringements and much more. Technology and laws have to go hand in hand to keep the confidence of inventors, to secure their rights and to protect the lawfully owned technology from violations and abuses. The increasing number of registered Intellectual Properties, massive investments portray the need for the arguable loopholes in the law of Intellectual Property Rights to be filled, to put an end to the exploitation of creators or companies and to give due recognition to the inventor in the eyes of the law.