Navigating Patentability: Metaverse Inventions Under the Indian Patent Act

20th December, 2024 - 6:38 am Categories: Patent Act 0 Comments

Industrial Relevance

As defined under Section 2(1)(ac), Indian Patents Act, industrial application means any invention or discovery which may be used or adapted for manufacture in any industry including agriculture.

Patent applications related to the Metaverse should explain how the invention works in practice, demonstrating a practical application beyond just theoretical principles of industry in action.

That is, patentability requirements cut across all technical domains such as software, virtual reality, and even the metaverse. Thus, the evaluation would include a detailed technical description of the invention and how the latter impacts the art’s progress.

Exceptions

Indian Patent Act Section 3

Types of inventions that are not regarded as patentable are listed in Section 3 of the Indian Patent Act. These include discoveries which infringe on the law, which are silly, or manifestly obvious, and atomic energy, and conventional wisdom.

Specific exclusions are available in the subheadings of Section 3. For instance, a mathematical or business method or a computer program per se or algorithms are excluded from patent protection under Section 3(k).

Software and Business Methods Excluded

It also contains many features that under its terms of operation, throw out, business procedures and software in their per se sense so goes with the broader debate in the international circle.

Hence, exclusion of software per se may indeed bar patentability in pure computer programs which have no actual technological application or innovative step.

The Metaverse is the combination of technologies such as virtual reality, augmented reality, and artificial intelligence. Innovation in the Metaverse may be commercial practices, software, or an algorithm.

An innovation related to the Metaverse, but not under Section, would be purely software or a commercial approach without even any specific technological contribution.

Business practices and software are not covered.

Indian Patent Act is characterized by exclusion of software and business processes. Internationalized debate on patentability supports the same in both these disciplines.

Exclusion of software itself could make purely computer programs which have no distinctive technical application or creative novelty unpatentable.

Impact on Metaverse-Related Inventions:

Metaverse refers to a hybrid of virtual reality, augmented reality, artificial intelligence among others. Some of the metaverse inventions include algorithms, software, and even commercial practises.

If the invention that relates to the Metaverse is just software or a commercial strategy and does not contribute any novel technological advance, then it can be excluded from Section.

Disclosure Obligations

The Indian patent system is established and governed by the Patents Act, 1970 and Patent Rules, 2003. Patent filing in India, basically requires a process wherein there should be a drafting of an application with the accompaniment of a full specification which contains information relating to an invention. The disclosure becomes relevant, so that the detailed information about the invention gets given in such a form and manner that another skilled man in the concerned technological art, can understand and make the same.

Full Specification

A patent application must be accompanied with a full specification, that is, detailed description of the invention. If that description is clear and concise, it should be able to explain and replicate innovation by a person skilled in art or any person who possesses knowledge about the area that is relevant to the area that the innovation pertains to. Written descriptions, drawings and, if necessary, demonstration of how to make and use the invention are typically incorporated in the specification.

A person skilled in the art should be able to carry out the invention using the specification alone without undue experimentation. It shall reveal the best mode that the inventor could think of to put the invention into practice. Best Mode requirement has that when the inventor makes the application, the inventor shall disclose the best mode contemplated by the inventor of carrying out the invention. The patent is deemed void in case of failure to make such disclosure of the best mode.

Enablement: This may depend on the detail based upon the complexity of the invention. In theory, a broad patent should be an incentive for the inventor so he doesn’t give so much information that others can use his innovation without his permission. Final section-the claims: There must be at least one or more claims which clearly identify and claim the subject matter believed to be the invention. Claims, which state what is covered by the patent, must be supported by the description in the specification. A summary description of the invention may be required by some offices as a cover sheet and/or as an abstract within an application.

If drawings are required to illustrate the invention, they will be annexed to the patent application. The description should contain a notation and references to the drawings.

An oath or declaration is usually required for patent applications, swearing to the validity of the inventor from being the true originator of the invention that he is claiming.

To successfully prosecute a patent application and later enforce the awarded patent, certain disclosure criteria must be complied with. It confers exclusive rights to the creator while ensuring that the public is aware of the innovation.

Patent Examination Procedure

1. Filing a Patent Application: The first step for patent is the filing of the patent application. This patent application must be filed at one of the four patent offices located in Delhi, Mumbai, Chennai, or Kolkata. The inventor can do this or may get the task done through his or her duly authorized agent.
2. Formality Check: To ensure the application is meeting the formality requirements that exist within the formal conditions of the Patents Act and Rules, the Indian Patent Office conducts a formality check. The repute is given an opportunity to rectify this lapse in case of such lapses.
3. Publication: After the priority or filing date that is eighteen months old, the application is published. When an application is published, it shall be open for public inspection.
4. Request for Inspection: The patent application is not examined as a matter of routine. A request for inspection shall be made by the applicant or any interested third party within 48 months from the date of priority or filing.
5. Search: Indian Patent Office searches if the application complies with the grounds of industrial applicability, inventive step, and novelty that will enable it to become eligible for receiving a patent. In case of software inventions, the patent office would verify whether the invention aided towards technology rather than merely being a commercial or mathematical method.
6. FER: FER issued by the Patent office publishes after scrutiny which incorporates examination of the application including all objections raised against the said application, hence first chances given by them is by letting reply to FER that also by providing a timeframe within.
7. Amendments and Hearings: If the EPO’s objection lies on some grounds, then the applicant is permitted to file amendments to the application. If an applicant is required, then applicant can request hearing and argue to be patentable.
8. Award or Rejection: The patent is awarded if all criteria for patentability are satisfied and any objection raised to the applicant is overcome. Alternatively, the Patent Office can reject the application.
9. Opposition After Grant: Permit third parties for a limited period of opportunity to oppose the grant after a patent has issued.

Author: : Mukund Ranjan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References:

1. IndiaFilings (2023) Software patent registration, IndiaFilings. Available at: https://www.indiafilings.com/learn/software-patent-registration/ (Accessed: 11 November 2023).
2. Sharma, A. (2015) Section 3(K) of the India Patents Act, 1970: A never ending challenge for it giants – patent – india, Section 3(k) Of The India Patents Act, 1970: A Never Ending Challenge For IT Giants – Patent – India. Available at: https://www.mondaq.com/india/patent/394478/section-3k-of-the-india-patents-act-1970-a-never-ending-challenge-for-it-giants#:~:text=Section%203(k)%20of%20the%20patent%20act%20describes%20that%20there,computer%20program%20me%20or%20algorithms.
3. Ravindra Chingale (July 2015), Software Patent in India: A Comparative Judicial and Empirical Overview, National Law University Delhi, Journal of Intellectual Property Rights
4. Vol 20, pp 210-222