There have been a lot of discussions and difference of opinions on whether an idea can be patented or not. Well, this indeed is a tricky question with an uncertain answer.
Filing for a patent requires the invention, as a product or a process, to be novel, industrially useful and inventive. As an inventor, while drafting patent specifications, one must disclose the best method known to him or her on the day of filing patent application. An issue arises that if the invention is just an idea, what is the best method of implementing the invention? At the same time however, all inventions originate from ideas. Therefore, it must be understood clearly that patents are granted only to inventions and not to ideas, provided such inventions fulfil certain statutory conditions as specified in patent law.
There are two ways to file for a patent, i.e., either a provisional patent application or complete patent application. If the invention is still in the development stage and is not complete yet, a provisional application should be filed. Some other reasons to file a provisional application are:
- The earliest date of filing or priority date is required;
- Conservation of time and money is a matter of importance;
- It is unsure if the invention will be developed further or not;
- The experimental data concerning the invention is not ready yet;
- Investor will release fund only after inventor produces evidence that patent application is filed;
- Changes are expected in the experimental data before completion of the work.
It is worth noting here that provisional application may be filed if the invention is at the stage of idea, provided that the idea is executable and is capable of being performed practically because at later point of time, at the time of filing complete application, best mode of performing the invention has to be disclosed. Further, the inventor should also keep in mind that the scope of provisional and complete application must remain same. A complete specification may be filed within 12 months from the date of filing provisional application. However, if the complete specification is not filed within this time period, the provisional application gets abandoned automatically without loss of confidentiality as the provisional application was not published.
Article 83 of the European Patent Convention states that an application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, and insufficient disclosure is one of the grounds for opposition of the patent.
United States patent laws explain that the patent specification must be complete enough so that a person of “ordinary skill in the art” of the invention can make and use the invention without “undue experimentation”. The laws further state that the disclosure must also contain the inventor’s “best mode” of making or practising the invention.
In India, section 10 of Patent Act sys that every complete application must fully and particularly describe the invention and its operation or use and the method by which it is to be performed. The Act also mentions that the application should disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection.
At the time of filing complete application, the best mode of working the invention must be disclosed. Failure to do so may expose the application to opposition before or after grant of the patent, thus leading to invalidation of the patent. In the Press Metal Corporation Limited vs Noshir Sorabji Pochkhanawalla case, it was held that it is the responsibility of the patentee to state clearly the nature and scope of what they claim in the patent, and that the patent specifications shall not contain ambiguous and obscure information.
In conclusion, an idea cannot get a patent as such if the idea not executable or cannot be converted to an invention. In order to claim priority date & protect the idea, it is recommended to file a provisional application if the invention is at the stage of an idea or experimental results of the invention are not complete and the invention is at a developmental stage. However, at the time of filing complete application, idea itself is not enough and inventor shall submit full disclosure of the invention along with best mode of working the invention.
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Author: Bindu Sharma
