The Early Bird Gets the Patent: An Introduction to Patents

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The Early Bird Gets the Patent: An Introduction to Patents

*Vandana Ramadhar



The generational proverb that the early bird gets the worm is a signature feature of the contemporary paradigm of the patent system as the early bird gets the patent worm. However, the fundamental question is why does any bird seek this patent worm. In short, a patent is one of the most prized commercial tools in the artillery of an entrepreneur as it confers a monopolistic right over the process or product invented for a limited period so that the inventor can recoup his investment. 

 

What is a patent?

A patent confers upon the inventor the proprietary right over the invention to utilise, exploit, license, and inhibit others from copying the said product or process. However, to be deemed patentable in Trinidad and Tobago, there must be compliance with the principal legislation, the Patents Act Chapter 82:76 of Trinidad and Tobago. Accordingly, the invention must satisfy the preliminary three-pronged threshold criteria under section 8 of the Patents Act of novelty, involving an inventive step and being capable of industrial application. 

 

Why does the patent exist?

Society dangles the prospect of capturing the patent worm to inventor birds because the long-term societal benefits exceed the short-term monopoly right granted to early inventor birds. The trade-off for the grant of patent worms is the disclosure of essential knowledge and information regarding the product or process, which can be utilised when the patent expires. By section 18(3) of the Patents Act, the specification of an application shall disclose the invention in a manner that is clear and complete enough for the invention to be performed by a person skilled in the art, and shall, in particular, indicate at least one mode known to the applicant for carrying out the invention. This justifies the patent system as the public can utilise the information disclosed, to recreate the product or process, after the expiration of the patent.

 

What are the criteria for a patent?

Section 9 of the Patents Act stipulates that an invention is deemed to be novel where it does not form part of the state of the art, which comprises all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in Trinidad and Tobago or elsewhere) by written or oral description, by use or in any other way. Assessing novelty involves a stringent test as any prior usage, or discussion of the concept, of the subject matter of the patent by an early bird can obviate novelty. Thus, the prospects of a patent can wriggle away from the reach of the tardy worms if the invention forms part of the state of the art. 

 

To firmly grasp and capture the patent worm, is it essential that the invention involves an inventive step. By section 10 of the Patents Act, an invention shall be taken to involve an inventive step if, having regard to the state of the art within the meaning of section 9(2), it is not obvious to a person having ordinary skill in the art. Essentially, this requires that other birds who have ordinary knowledge and skill in the area of technology related to the invention would not find the invention to be a readily apparent or an obvious advancement over the prior art. Instead, the early inventor bird must prove that his invention is, qualitatively, a big enough technical advance over the prior art. Inventive step is regarded to be so fundamental to the proper functioning of the patent system that it can be accurately described as “the most important of the basic patent requirements,” “central to determining patentability,” “the key to defining what is a patentable invention,” or simply “the ultimate condition of patentability.” The non-obviousness doctrine plays its most important role where society and technology are experiencing rapid change, whereas in a more static society, the non-obviousness doctrine would be less important. This is because where developments and inventions are rapidly being produced, the non-obviousness doctrine looks beyond whether the invention has been anticipated, but towards whether upon a qualitative examination of the invention, it displays ingenuity beyond the compass of a person of ordinary skill in the art.

 

Thirdly, if the invention is capable of industrial application, the patent worm is primed to be ensnared. Industrial application requires that the invention can be made or used in any kind of industry including agriculture, fishery and handicraft (section 11 Patents Act). In Human Genome Sciences Inc v Eli Lilly [2011] UKSC 51, it was held that it is not sufficient to provide a vague and speculative indication of possible objectives that may or may not be achievable nor must it be a purely theoretical possibility of exploitation

 

Are patents useful?

A patent is an extremely important tool and its relevance is undeniable. Frequent litigation concerning billions of dollars over patent disputes underscores the pertinence of a patent. This article addresses two economic giants whose success has largely been attributable to their patents, Amazon and iPhone. 

 

In the fast-paced commercial global e-marketplace, Amazon was the early bird that captured both the revolutionary patent for the “1-click” ordering and significant economic success. The “1-click” patent whereby customers entered their billing, shipping and payment information once and then simply clicked a button to buy something going forward was unprecedented. The invention was novel, involved an inventive step and was capable of industrial application and thus, Amazon was the early bird that secured this patent worm in 1999. 

 

Further, the relevance of patents to the common man is exemplified by every conceivable technological advance being protected by a patent.  The phone industry is no exception. These patents, not only enable access to valuable information, but litigation over them has far-reaching implications in the stock market and downstream sectors.  The iPhone-Samsung dispute has not been limited to consumer debates but has reached the hallowed halls of Courtrooms where they duelled for market shares. The patent battle started in 2011 when Apple accused Samsung of “slavishly” copying the iPhone design. In 2016, the case reached the US Supreme court, and a US jury eventually ordered Samsung to pay Apple $539 million in lieu of the damages for “copying features of the original iPhone”.

 

Conclusion

The patent worm is a valuable possession of any inventor bird as he can monopolise his product or process for a limited period and recoup his investment. The inventor bird’s scope for commercial gain is limitless, as exhibited by Amazon and iPhone’s widespread global success. Upon expiration of the patent, the ordinary bird can also capitalise upon the information disclosed by the patent worm to gain inspiration and technical knowledge needed for their own invention. The early bird of inventorship gets the patent worm; a worm that can fuel the bird’s economic success and thrust it to the status of an eagle among pigeons.


*Vandana can be contacted at vandana.ramadhar@gmail.com. 

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