ACTION PLAN FOR START-UPS IN FIELD OF EMERGING TECHNOLOGIES

An increasing number of product start-ups in India have realized the need for filing patents at an early stage of product development. However, the same is not particularly the case for start-ups having innovations in the hi-technology and emerging technologies. India is home to 8,900-9,300 tech startups making it the second largest start-up ecosystem in the world. Over the last few years, many of such start-ups are innovating and developing intellectual property in emerging technologies such as blockchain, artificial intelligence, cyber security, cloud computing, data mining, robotic systems etc. In fact, according to latest report, 'Emerging Technologies: Leading the next wave of IP Creation for India' by NASSCOM, Artificial Intelligence, Cyber Security, IoT and Cloud Computing account for over 50 per cent of the tech patents filed during last few years. However, many start-ups wait to file patents till innovations attain commercial viability or refrain from filing patents altogether citing various reasons.

The availability of patent protection for the outputs of hi-tech and emerging technologies related systems is one of the most difficult issues facing start-ups today. Several cash strapped start-ups don’t apply for a patent altogether as their innovations on such technologies may or may not turn out to be valuable depending on its utility, or don’t prioritize early patent filing if its innovation is not important to the business plan. Many start-ups don’t tend to disclose the software code implementing innovative technologies developed by them on ground of fear of being copied by their competitors, and keep it as trade secrets. Some start-ups struggle to determine whether they can obtain patent protection on its innovation i.e. whether the innovation can satisfy the novelty and non-obvious requirement to obtain a patent, as one doesn’t necessarily have the tools to do the analysis themselves. In addition, there has been an increasing uncertainty with regard to patentability of inventions in field of computer related technologies, as the Indian Patent Act prohibits patent protection of “a mathematical or business method or a computer per se or algorithms” and “a mere scheme or rule or method of performing mental act or method of playing game”. This ground is frequently used by the patent examiners to render software related claims invalid. The recent Computer Related Inventions (CRI) guidelines and judicial judgements have shed some light on evaluating the eligibility of computer programs.

As per the recent CRI Guidelines, 2017, the test for patentability is whether the invention has a technical contribution/technical effect and is not merely a computer program “per se”. The Delhi High Court in various decisions4 has also affirmed the “technical contribution” test. However, there is still legal uncertainty surrounding patentability of software related inventions. It has become difficult in some cases for start-ups to reliably and predictably determine whether its software related invention is patent-eligible. Now, before thinking about filing a patent, one has to determine whether your invention comprising computer programs, when running on or loaded into a computer, goes beyond the ‘normal’ physical interactions between the software and the hardware on which it is run i.e. it is capable of bringing a technical effect. Startups can avail the services of patent lawyers/IP firms in order to determine whether the innovation can fulfil the patentability criteria for software/computer related inventions as per the Indian law. There are many other challenges that lie ahead for start-ups in the field of hi-tech and emerging technologies. These days, it’s becoming increasingly prudent that at initial stages of commercialization of your product, you should get in touch with an IP law firm or a patent lawyer, in order to understand your business objectives and develop a patent strategy around it. Without patent protection, another company may copy or reverse engineer the inventions and sell them at a lower price. It’s also important for the start-ups to understand that once an idea or product goes public, the possibility of acquiring a patent is lost under most circumstances. It is, therefore, important to patent your inventions before you disclose your invention in conferences, pitch competitions, crowdfunding campaigns, launches, trade shows, etc. If a startup hasn’t finalized the invention yet and is in the process of developing its invention, then they have the option to file a provisional specification to freeze priority date and thereafter can fine tune the invention and provide further details in the complete specification within 12 months’ time period. At the time of filing of a patent, Start-ups can avail the benefit of various schemes and incentives undertaken by the government of India5 . It is preferable to get a patentability opinion before you apply for a patent. Start-ups can get analysis on patent strength analysis, competitor product, and technology landscape which can help you with a better understanding of your patent’s commercial strength, most relevant competitor product and technology trends. With different patentability requirements in other countries, Start-ups ought to seek advice to see if they can secure patent protection outside India and thus benefit from such patent protection when they finally end up commercializing their products outside India. Thus, a research as to the target market area and steps to ensure that patent protection is applied for will ensure that start-ups strengthen their IPR portfolio.