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The Patentability of an Idea: Is an Idea an Invention?

One of the most controversial aspects of patent law has always been whether an idea can be patented or not.


One of the most controversial aspects of patent law has always been whether an idea can be patented or not. This question arises due to the very thin line of difference between an idea and an invention since an invention is basically the manifestation of an idea into something concrete and usable which can thereby be of use. As per the laws for patents, it would appear that there is no direct way to protect any idea under intellectual property rights. Furthermore, copyright primarily provides protection for literary and artistic works but not any innovation. Furthermore, it is important to note that patents also only provide protection to novel and unique inventions in any field. This is because an idea may be the first primary step towards any invention, however, due to the fact that no precise monetary value can be attached to an idea, as per the law it may become difficult to provide patent protection to it. It is due to this very reason that most inventors like to draft a non-disclosure or a confidentiality clause during the first few stages of their invention for protecting the same. Even after this precaution though, this agreement is still not binding on another individual unless the same has been signed by the same person. Hence in case any third party who is not a signatory to this agreement uses this idea through some form of discovery, then the inventor cannot sue him for the same.

Thus, in order for an idea to be protected within the Patent laws, it is necessary for the idea to not be ambiguous or confusing in its usage in any manner. Furthermore, just a simple idea cannot be protected under the law. Only when the idea is specific and concrete and has enough of a self-description to describe its functioning, thereby making it an asset valuable enough to be protected, can it be given protection under the patent law.

What is a patent and why is it important?

A patent is an intellectual property which provides specific legal rights to the owner of such an IP against any unauthorised selling, using, making or sharing of his work or his invention for a limited period of time. Primarily, a patent is a sort of license which is given to the inventor, providing him with exclusive rights over his invention whether it is a process or a product. Such rights are given for a limited amount of time after which, the owner needs to re-apply for the same. However, in order to acquire such a patent the new process which has been invented or the new product must be of value and should add to giving solutions to the already existent problems regarding any specific area. In India, patent rights are given for a specified period of 20 years after which such an invention is made available to the public in general.

How can an idea be patented?

Under, section 10 of the Patent Act there exist certain specific provisions which are essential in the application for any patent. One such provision is the preamble. If it is a provisional application, such a preamble begins with 'the following specification describes the invention' and the preamble of the complete application reads as 'the following specification particularly describes the invention and the manner in which it is to be performed. It can therefore be concluded that for such an invention to be patented, there needs to exist a certain amount of practical usage for the same. Thus, if an idea holds the potential to be performed and the inventor has a certain method and process for performing this idea in place, then such an idea has the possibility of acquiring a patent and thus a provisional application for the same can be filled out. For this purpose it is important to have a mandate disclosure of the best possible method of performing such an invention which needs to be mentioned in the complete application. Furthermore, this idea must also be described properly and a patent must be filed for it through a provisional application and subsequently the inventor can then work a way out along with a technique for its performance, within 12 months of filing the provisional application. After all of these steps, the inventor can then file for the complete application.

However, it is important to note that upon any failure to complete such an application within the prescribed time period, the provisional application stands rejected and thus held invalid on the grounds that there existed insufficient description of such an invention.

For example, let’s say a person has an idea of making a mobile application cyber threat warning system and further has the prowess to convert the thought into an invention. In such a situation, the person can file a provisional application for the grant of a patent by describing his idea of the application and subsequently, within a period of 12 months he could then file a complete application again describing the mode and process of performance of such an invention. The failure of submission of the full application may amount to the invalidation of the application as well.

What Can Be Patented?

Under the Indian Patents Act, 1970, sections 3 and 4 clearly provide the exclusions to what can be patented in India. This then results in us questioning as to what can ultimately acquire a patent in India and if an idea can at all be covered under this category.

It is important to note that one cannot simply answer this question with a yes or no as it depends upon every situation and the basic use of the invention or idea in question. There is however, a given criteria which needs to be complied with for making any invention patentable. The patentability of an invention is determined by its ability to meet the criteria.

According to section2 (j) of the Indian Patents Act, 1970 an invention means "a new product or process involving an inventive step and capable of industrial application.” The following criteria determine what can be patented in India and if an idea comes within the ambit of being covered for the same:

1. The patentable of subject matter or idea in question:

The primary consideration is to determine whether the idea or further the subsequent invention relates to a patentable subject-matter. Sections 3 and 4 of the Patents Act provide a list of non-patentable subject matter. It is thus important to note that as long as the invention does not fall under any provision of sections 3 or 4, it can acquire a patent.

2. Any novelty:

The novelty or “invention” aspect of such an idea is an important criterion in determining the patentability of it. The novelty or new invention is defined under section 2(l) of the Patents Act 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".

Thus, the requirement for novelty basically states that an invention must never have been published in the public domain prior to this. It must be new with no same or similar prior arts anywhere.

3. All the inventive steps which prove its non-obvious character:

The term “inventive step” has also been defined under Section 2(ja) of the Patents Act as "a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art". This implies that such an invention cannot be obvious to a person skilled in the same field as the invention. It must be inventive completely and not obvious to a person skilled in the same field whatsoever.

4. Ability for application within industries:

The industrial applicability aspect of an invention or the idea is defined under section 2(ac) of the Patents Act as "the invention is capable of being made or used in an industry". What this means is that the invention cannot exist in abstract and must be capable of application within any industry. This means that such an invention must have basic practical utility in order for it to acquire a patent.

The above are the statutory requirements for the acquisition of a patent for any invention. Further, another important criterion for acquiring a patent is the disclosure of an enabling patent. An enabling patent disclosure implies that a patent draft specification must disclose the invention sufficiently, so as to enable a person skilled in the same field as the invention, to carry out the invention without undue effort or skill. If the patent specification does not disclose an enabling patent then the grant of such a patent will most definitely be rejected.


Thus after due analysis of the above, it can clearly be provided that an idea can be patented if it can later be transformed into an invention. Any inventor will be well within his rights to file for a patent for his idea initially, but it is important for such an individual to analyse whether his idea has any capability of subsequently being performed and utilised in the specified industry. In case the idea lacks the capacity of performance, then such an application must be rejected and the patent cannot be granted for the same. Hence, for an idea to be filed in a patent application, it is necessary for that idea to not be vague and be substantive enough to later become an asset, provided the mode of performance of the invention is available and possible in itself.

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