Invention and Innovation: How Different Are They ?
-Swapna Sundar, IP Dome
(Excerpt from ‘IP Smart –
how to get ahead using IP’ a book in progress by Swapna Sundar. © Swapna
Sundar, 2012)
An
‘innovation’ is a new process or device that contributes a significant
differentiation to a pre-existing functionality of a known invention. This
significant differentiation can be provided by one or more of several
‘innovations’ including design, ease of use, ease of manufacture and addition
of known features of functionalities. Some ‘innovations’ like the iPod are
better known than the individual ‘inventions’ that make them possible.
Technology
is what enables ‘innovation’; while it is ‘commercial science’ that leads to
‘invention’. Technology innovation is the process through which improved
technologies are developed and brought into widespread use. The process of
innovation includes research, development, design and market use. These
processes are enabled by arrangements between financiers, market research
agencies, designers, scientists and laboratories of different disciplines and
organisations that produce and market the product.
While
‘invention’ lies at the core of the technological advancement, it is risky to
invest in it as returns are unpredictable. With a radical invention, it is not
possible to say whether it would succeed in the market. However, with an
innovation comprising known and tested inventions, the possibility of success
is much higher. This is the reason that most investments are targeted towards
innovative technologies with clear commercial applications and financial
returns.
Under
the Indian Patents Act, 1970, an ‘invention’ means any new and useful -
• art, process, method or manner of
manufacture;
• machine, apparatus or other article;
• substance produced by manufacture,
and
includes any new and useful improvement of any of them.
In
Bishwanath Prasad RadheyShyam Appellant v Hindustan Metal Industries , one of
the landmark cases in Indian IP law, the Supreme Court of India laid down the
importance of assessing ‘inventive step’, as follows:
"It
is important that in order to be patentable an improvement on something known
before or a combination of different matters already known, should be something
more than a mere workshop improvement; and must independently satisfy the test
of invention or an 'inventive step'. To be patentable the improvement or the
combination must produce a new result, or a new article or a better or cheaper
article than before. The combination of old known integers may be so combined
that by their working interrelation they produce a new process or improved
result. Mere collection of more than one integers or things, not involving the
exercise of any inventive faculty, does not qualify for the grant of a
patent."
In
non-law terms, an invention is a new device, method, composition or process.
The process could be an improvement on the existing process. However, this
improvement must result in a new product or functionality. Inventions should
not be obvious to others working in the field – either in academia or in
industry, or both. The term ‘innovation’ does not appear in the Act, and no
protection is provided to innovations.
To
understand ‘innovation’ as compared to ‘invention’ let us look at a species of
patents that are not protected in India.
Several
countries in the world have the practice of granting ‘Petty Patent’ protection
to minor inventions that are useful and industrially applicable such as those
relating to tools and implements, but do not represent a technical step forward
in the art and fail to cross the barrier of ‘inventive’ step. These petty
patents are also called ‘utility models’. It was the German Patent law, which
in 1978, first introduced limited protection for simple devices for 3 years.
Soon Japan followed suit, closely followed by China, Korea and Taiwan, though
with significant differences from German law in one or more of the following
respects:
•
Standard of invention required.
• The
basis on which novelty is assessed.
•
Whether examination is required.
•
Costs.
•
Duration of protection.
The
fifteen years up to 2000 saw the introduction of utility model protection in at
least 25 jurisdictions which did not have them previously, taking the total
number of countries with petty patent protection to 77. These patents are
called Utility Model in China; Innovation Patent in Australia; Utility Model in
Japan, Italy; Germany (Gebrauchsmuster); France (Certificate d’Utilitie) and
Spain; Short Term Patent in Holland and Ireland and Short Patent in Belgium. In
some countries like Australia, a utility model can be converted into a standard
patent. As of now, India, USA and UK do not grant protection for petty patents.
Utility
patents provide cost advantage. Normally petty patents are not examined before
grant. As it is only an examination that would reveal whether the patent is
valid, they may be more difficult to sell or license, or enforce, until the
patent has been examined and certified.
The
Australian Patent Office grants ‘Innovation Patents’ to inventions that are
new, useful and involve an innovative step.
In
2008, the Australian Federal Court has handed down a decision relating to the
enforceability of innovation patents, wherein, a substantive judicial decision
was made regarding the definition of ‘innovative step’. In Delnorth Pty Ltd v
Dura-Post (Aust) Pty Ltd JusticeGyles
considered three innovation patents for roadside posts for supporting signage
or delineating paths, roadways or boundaries. The three innovation patents were
granted on applications divided from a standard patent application. In a
finding that turned largely upon construction of the relevant claims His Honour
held that Dura-Post’s ‘Exy-Drive Steel Flex’ post infringed the patents.
Dura-Post had claimed that the patents did not relate to a manner of
manufacture, or lacked fair basis, novelty, utility or clarity, and also
included the ground of lack of innovative step.
When
considering whether an innovative step subsisted, His Honour prescribed the
following steps:
• Compare the invention as claimed in
each claim with the prior art base and determine the difference(s),
• Look at the difference(s) through the
eyes of a person skilled in the relevant art in the light of the common general
knowledge as it existed in Australia before the priority date, and
• Ask whether the invention as claimed
only varies from the kinds of information set out in prior art in ways that
make no substantial contribution to the working of the invention.
In
other worlds, in the context of the claimed roadside post, this meant the
question was whether the claimed features made a substantial contribution to
the way the roadside post functions. The question was not whether the claimed
features contributed to the claimed function of the roadside post of being
elastically bendable.
Further,
the proper construction of the term ‘substantial’ in this context will depend
on the situation - it may mean ‘great’ or ‘weighty’ in some situations, or
‘more than insubstantial’ or ‘of substance’ in others. While not judicially
stating that an ‘innovative step’ requirement for an innovation patent
constitutes a lower level of inventiveness as compared with an ‘inventive step’
for a standard patent, the court did provide a clear distinction between the
term ‘inventive step’ as applied to standard patents and ‘innovative step’ as
applied to innovation patents.
An
innovation patent can protect an invention that has a point of differentiation
that provides a substantial contribution to the working of the invention, even
if that point of differentiation is obvious.
A
related concept is ‘technology’. In its very general sense, technology is the
application of scientific knowledge for practical purposes through the usage
and knowledge of tools, techniques, crafts, systems or methods of organization,
especially in industry. Change in the real world is the explicit purpose of
technology, and not, as is the case with science, the understanding of nature;
accordingly its solutions are not right or wrong, verifiable or falsifiable,
but more or less effective from different points of view.
However,
given the widespread use of the term in the 20th century, it has evolved to
mean several different classes of ‘technology’ such as advances in Information
‘Technology’. Technology has also come to mean the branch of knowledge dealing
with engineering or applied sciences. In anthropology, technology also refers
to the body of tools and other implements produced by a given society, therefore,
technology is also the way human beings use machines and other tools to make or
do something. Technology includes all the objects from a basic pencil and paper
to the latest electronic gadget.
Thus
technology also refers to goods or services, or goods and services that result
in a technical method to achieve a practical purpose or in improvements to
productivity. The know-how behind such technology is also technology. Design,
development and realisation of a solution - whether that be through prototype,
batch- or mass- production or some form of three-dimensional or computer model
– is technology.
Design
and production involve co-operating multi-disciplinary teams of designer,
production engineer and materials scientist, but also may require “technologists”
in performing a multitude of functions, such as working with others, operating
within budgets, persuading decision makers, communicating to clients and
working to deadlines.
In
today’s world, technology has also evolved to reflect the values that we hold
dear such as ‘green or sustainable’ technology, and ‘people-centric technology’
depending on the rightness or wrongness of a particular solution in ethical
terms apart from suitability for purpose and ease of manufacture.
In
July 2011, several newspapers carried
news that the Department of Industrial Policy and Promotion had made
a proposal
to the Government for protecting petty patents. Nothing more has been heard on
this proposal till date. As matters stand, Indian Patents Act does not recognise
innovations as protectable subject matter.
However,
Innovation has its supporters among policy-makers, entrepreneurs, innovators
and academic & research institutions in this country, including bodies such
as the National Innovation Council. The advocates of innovation in India
support the growth of ‘innovation for India’ which is to be appropriate for the
Indian population.
The
Indian capacity to innovate in adversity is also being seen globally as an idea
that can be emulated in small and large companies, organisations and developing
economies. Indian-born telecom millionaire and Chairman of the National
Innovation Council, Sam Pitroda says, in his foreword to ‘Jugaad Innovation’ ,
‘ (India’s) unique needs call for a new model of innovation that focuses on
affordability and inclusive growth and lifts people at the bottom of the
pyramid out of poverty and deprivation.’ And again, ‘…our innovation needs to
be frugal with scare resources, affordable for our poorest citizens, and
environmentally sustainable.’ According to Mr.Pitroda, innovations abound in
our country, the challenge is to scale and standardize, and market these
innovations.
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