Inadequacy of Patent laws with the rise of the Internet of Things

Introduction

Internet of Things(IoT) is an important feature of the Fourth Industrial Revolution which brings a better and advanced wireless communication, A.I. and data, computational power. It is an updated and comprehensive technological infrastructure that works independently. IoT is anyways a challenge to Intellectual Property(I.P.) protection. It causes a challenge to I.P. practitioners due to its rapid changes, a network of innovations made and developing strategies. The European Research Cluster on the Internet of Things has defined the Internet of Things as “A dynamic global network infrastructure with self-configuring capabilities based on standard and interoperable communication protocols where physical and virtual “things” have identities, physical attributes, and virtual personalities and use intelligent interfaces, and are seamlessly integrated into the information network”[i].  

World Intellectual Property Organization defines Patent as “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.”[ii]Patent is an essential of I.P. that is needed in an era of inventions. It gives the owner protection that others do not use his invention for selling or marketing purpose for a limited period with subject to an exchange. Obtaining a patent right is hard, and in an era of advanced IoT generally, all the inventions made are software-based. It becomes more challenging to get a patent, also when in countries like India, where software cannot be patented.

What is the Internet of Things?

Background

The Internet of Things (IoT) was not a common system long before. But the innovation of machines existed in the early 1800s. After an invention of Telegraph in the 1830s, machines played an essential role in communication. Later in the 1950s, the development of computer began. It increased the system of the internet of things. The term ‘Internet of Things’ wasn’t coined until 1999. In the early 1980s, Coco-Cola Industry, installed Coco-Cola machine a Carnegie Melon University, which would connect local programmers by using the internet to the refrigerated appliance. It was done to check whether a drink was available and cold. An evolution to the internet of things occurred in 2013 with the usage of multiple technologies like wireless communication and from micro-electromechanical systems to embedded systems. ‘The traditional fields of automation (including the automation of buildings and homes), wireless sensor networks, G.P.S., control systems, and others, all support the IoT.’[iii]

Growing Importance

It can be observed that Artificial Intelligence has switched from science fiction based on our normal daily use gadgets. One of the finest and current example is of an upgraded IoT device would be the Amazon Echo speaker. Amazon came up with a multi-tasked speaker that connects to voices and does various tasks along with playing music. Then Echo based virtual voice service, Alexa, hold the current market. It is the latest technology today from checking nearby restaurants to switching off lights to playing music on a connection with a voice. In India, a revolution to upgraded technology and innovation exist. Make in India is one such project of the government founded in 2014 to motivate and acknowledge innovation and development. However, India lacks effective and updated I.P.R. laws and policies. Furthermore, there is a need for an extensive and comprehensive analysis of the I.P.R. laws subjected to the latest innovations in technology.

Patent System and the Internet of Things

These their many companies spending lots of money on the Internet of Things such as Google, Microsoft, Dell, Amazon and Rolls Royce. According to the International Data Corporation (I.D.C.) report of “Worldwide Semiannual Internet of Things Spending Guide”, ‘worldwide spending on the Internet of Things (IoT) is forecast to reach $745 billion in 2019, an increase of 15.4% over the $646 billion spent in 2018’.[iv] This report shows that revenue would be increased in the I.P. world. It can also be seen that there lies a growth in the patent filings with the subject matter of IoT. The devices need to be communicating with the usage of standardized technology in IoT. However, when a patent is filed with this standardized technology, it will cause immense competition in the market. All this will occur as patenting done using the standardized technology by any party will infringe the patent of the former. It will give a threat of the rise of patent trolls.[v] Therefore, such form of patents as standard-essential patents (S.E.P.s) and licensing of the same to third parties on FRAND (fair, reasonable and non-discriminatory) is reasonable and adaptive.

Software Patenting

In Indian Patenting system, the software is not protected, which means that it does not cover source code in it. Such restriction lies to computer programs only. Devices or products which are operated by the software are protected in the patent laws. When a particular software of the IoT is built with hardware combination under Computer Related Invention (C.R.I.), it can be protected under the patent laws. It is also vital that such software should meet up the patentability qualifications of novelty, inventive step and industrial applicability.

The term Computer Related Invention (C.R.I.) is not legally defined in any Indian Patent Law, U.S. or European statute. Indian Patent Office gave the rules for Examination of Computer Related Inventions defined that C.R.I. is: “any creation which includes the utilization of a computer or a computer network or programmable apparatus and incorporates within such a creation the use of computer programme/s.”[vi]

“If in the disclosure of the invention, there is a description of a computer program (in whole, or part) then the patent would be called ‘software patent’.”[vii] It is the most trending subject of a patent. Under I.P. law these are covered under copyrights and patent.

Indian Patent Act and IoT

‘Patentability’ and ‘invention’ are different. To claim patent few tests has to be qualified. A patent to be granted, Section 2(j) and Section 2(ja) have to be read with Section 3(k).[viii] These three essentials to be qualified for an ‘invention’ needed –

1. It must not be anticipated, and it should be new.

2. It must comply with an industrial application under Section 2(1)(ac).

3. It must include an original and innovative content, which means that it must consist of inventive advance over existing content and has been non-existing to a person skilled in the art.

It must not fall under the non-patentable software programme definition under Section 3(k), Indian Patent Act, 1970. Section 3 states that: “What are not inventions: a mathematical or business method or a computer programme per se or algorithms;” If these conditions are fulfilled, then a patent can be granted.”

Software Patent and IoT

Patents can be granted under Article 27.1 of TRIPS for an invention provided it is new, non-obvious and have industrial application.[ix] Internet of things will increase the applications for the grant of a patent to software patents. It has to be noted that if appropriate rules are not made, then it would restrict the development. In Schaltkreissimulation Infineon Technologies[x] “an undefined physical system in a computer to be an intellectual activity which had all the traits typical of non-technical branches of knowledge and was therefore analogous to the non-inventions listed under Article 52(2)(a) and (c) E.P.C. Information modelling was the first stage of software development for systematically gathering data about the physical system to be modelled or simulated and providing as it were a real-world model of the system on paper”[xi] In this case, technical items were included in technological processes to patent.

Conclusion

Without any development in the areas mentioned above, the Internet of Things can turn into an Internet of broken things. The choice of applying the technical idea in hardware or software or patenting it should not be taken into consideration. The criteria should be innovative embedded in a work and not of the frame in which it exists. Policymakers should pay attention to the opinions of all stakeholders related to the implementation of legislation regarding software patents when making laws or making laws. Typically, the absence of gaps can hinder the development of the IoT region. However, it can be overwhelming for patent holders to differentiate in every field. The problem of interoperability can be solved when developing horizontal platforms for inter-connectivity rather than vertical platforms such as OneM2M.

Furthermore, if IoT innovation becomes popular as it is evaluated, there may be potential for IoT innovation affecting patent law. India’s I.P. strategy should focus on I.P.R. in the context of India and not blind to the standards set as a tool for development. Countries whose I.P.R. governance may exist in a different context. Due to future changes, we must discuss the patent topic and the best way to overcome these challenges.

Frequently Asked Questions

  1. What is the Internet of Things?
  2. What is the growing importance of the Internet of Things?
  3. What is Software Patenting?
  4. How is Patenting and Internet of Things connected?
  5. What is the effect of the Internet of Things in Indian Patent System?
  6. What is the role of Software Patenting in the Internet of Things?

[i] http://www.internet-of-things-research.eu/about_iot.htm

[ii] https://www.wipo.int/patents/en/

[iii] https://www.dataversity.net/brief-history-internet-things/#

[iv] https://www.idc.com/getdoc.jsp?containerId=prUS44596319

[v] https://www.investopedia.com/terms/p/patent-troll.asp

[vi] Guidelines for Examination of Computer Related Inventions, IPO, 2013

[vii] http://www.innovationiseverywhere.com/make-in-india-meet-5-promising-internet-things-startups-bangalore/

[viii] Novartis v. Union of India, (2016) 6 S.C.C. 1.

[ix] https://www.zdnet.com/article/should-software-be-patentable-thats-the-wrong-question-to-ask/

[x] EP:BA:2006:T122705.20061213

[xi] https://www.epo.org/law-practice/case-law-appeals/recent/t051227ep1.html

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