In the competitive business world, investors often choose to invest smartly in businesses, where their products are to be unique and free from immediate competition. A patented invention is just what these inventors need.
An invention if published before patenting, creates an opportunity for people to copy it, without the fear of infringement as no patent is held in case of this particular invention. Such copying, of an already published non-patented invention is not illegal.
Any invention published, prior to the filing of a patent application, becomes available in the public domain and is known as a prior art form. These prior arts could be available in the form of:
– Publications – any patents, textbooks, scientific publications, textbooks, newspapers, lectures, demonstrations, exhibitions, and any other disclosures;
– Publicly available products– however these only include products that are demonstrated to the public, and not sold;
– Oral disclosures.
The publishing of an invention prior to filing of the patent application, is not advised because, if done, your published invention loses its chances of being patented, as the publication would be cited/treated as a prior art.
Consequences of publication prior to the filing of patent application:
Novelty of an invention is a mandatory condition while examining the patentability criteria for an invention. The Indian Patents Act, 1970 enunciates the difference between a new invention and an invention. A ‘new invention’ is defined as:
“any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art“.
When you publish your invention before filing for a patent application, it falls in the public domain, thereby negating your invention of its novelty. Hence, if a patent application is filed after the publishing of your invention, your own invention shall be listed as a prior art, and hence your patent application may be rejected. Lack of novelty is also referred to as anticipation.
However, the Indian Patents Act, do provide a few exceptions, where publishing of invention before filing of patent application shall not be regarded as anticipated:
1. Anticipation by previous publication (Sec. 29)
2. Anticipation by previous communication to the government (Sec. 30)
3. Anticipation by public display (Sec. 31)
4. Anticipation by public working (Sec. 32)
5. Anticipation by use and publication after provisional specification (Sec. 33)
Benefits of filing for a patent application, before publishing your invention:
Filing of a patent application, before publishing the invention, gives the inventor complete control over his invention, and disallow it from being copied, sold or manufactured by others. The hold of a patent application, before publishing of invention also gives the inventor an upper hand, when compared to the competitors in the relevant market.
Once you’ve filed for a patent application, and later on publish your invention, the novelty criteria still stands, and your invention cannot be listed as prior art, for your own patent application.
For more details and discussion regarding patenting your invention, please contact us.