Home Brands Winning the Fight Over Big Brands

Christmas is a great time to catch up with family and friends that you hardly see. This year I ran into a friend of mine who works for a chemical manufacturer. The organisation he works for happens to specialise in anti-bacterial hand washes and sunscreen creams.

After exchanging our greetings I asked how work was and he told me that manufacturing was tough and would only be getting tougher. The weather was hot (it is Christmas and summer in Australia at the moment) and so I took out the sunscreen my wife had purchased from our local supermarket to apply on my children’s skin. He asked why we had purchased that particular brand and my wife explained that she recognised the brand and that the bottle looked easy to open and close. He then began to explain that the difference between the brand offered by the supermarket “Home Brand” and the brand we had purchased was probably perfume only, ie one had a different aroma added to it than the other. In terms of the protection offered, there was no difference. The company he worked for made several brands of sunscreen and they where all pretty much exactly the same, differentiated by packaging and therefore price.

He extended his comparison to the anti-bacterial hand cleanser that his company also makes. Our local supermarket stocks a few brands and we have gotten used to the smell of a particular brand that we now buy regularly. The formula used was very similar if not the same across each of the brands that they packaged on behalf of other companies.

With all of this information at hand it got me thinking. Of late the press had been hammering the big supermarkets about their drive to have customers purchase “home brand” products by essentially giving them priority positioning on shelves as well as undercutting the competition on price.

Can millions of dollars invested in a brand disappear literally over night if you learn that brand A and brand B are essentially the same? Are you likely to switch to a “home branded” product offered by a supermarket simply because it is 30% lower in price than the traditional market leader. Should we as consumers care if big brands are being driven out of the market by cheaper alternatives with the distribution power to undercut them?

The large supermarket chains of Coles and Woolworths dominate grocery shopping in Australia. IGA and a few independents offer some competition but the shear distribution of these large chains means they control what we eat and what brands we buy. Or do they?

The press is telling us that if we don’t want our grocery shelves dominated by “Home Brands” we should be voting with our wallets, driving the dollars back to the big brands. Yet the big brands make us pay 30% more for what is essentially the same product as the “Home Brand” simply because this is how they make lots of money.

Look at your own shopping experience. Would you travel out of your way to buy a particular branded product if the local grocery store didn’t stock or stopped stocking it? Would you continue to go out of your way even after a few months. If you are time poor, you like most others are more likely to pick the easier option, just buy what the store offers.

In Australia the Coles and Woolworths range of “Home Branded” products are taking between 25% and 30% of all grocery sales. This is likely to rise to over 30% as has been seen in other countries like the UK. With a young family, I purchase 9 litres of milk each week. That is three times three litre containers. The difference between buying the “Home Brand” and the market leader is over $1.50 per container, equating $4.50 per week. I personally prefer the taste of the market leader’s milk but until my kids can tell the difference and ask for it, I would rather save the $4.50 per week.

Therefore the market leading retail milk brand in Australia who has spent so much over the years convincing us that their flavour and milk is better is now forced to compete primarily on price. It is a big challenge for them and it will require them to begin to think in a different way so that they can begin to win customers like me back. As I mentioned I prefer their milk but when the economy is facing tough times, we all reign in our spending where we can and make compromises to get by.

A few years ago a similar marketing challenge was presented to Panadol the leading paracetamol brand (head ache relief). A low cost, no frills competitor come into the market saying that it offered the same formula as Panadol without the premium price. Their advertising in fact focused primarily on this point of difference. Same formula, 30% cheaper.

What Panadol did was evolve their product range, developing products that worked quicker “Rapid” and were more focused on specific pain relief (eg kids). They developed marketing campaigns focusing on the tie that many Australians had with the brand and how they used it for specific pain relief. They used some real customers and made their advertisements focus on “testimonial.”

To date it has worked and Panadol is once again selling well. Whilst the other brand is still around, it hasn’t been seen on TV for years.

Special Training For Brain Development Of Kids

Many researchers have proven the fact that functioning of brain cells of infants is twice active as adult’s brain. Neurons are the brain cells that connect together and power of neuron have the potential of a PC. Connectivity of neurons decides the smartness or intelligence of individuals. In human, brain development and the learning ability of an individual is 50% in the first four years of age. The nerves of individuals are reduced as they grow up and this is why the 1000 trillion nerves present in an 8 months baby are reduced to 500 trillion as it grows up. A child that has given more opportunities to explore will be much smart.

A majority of children, more than 90% of them use their left brain, but the imperative fact to remember is the right brain must also be utilized. Education system present in almost all the schools is designed to develop or use the left brain. Right brain is never the less significant because it is responsible for creativity, arts, feeling, imagination, visualizing, daydreaming, rhythm, holistic thinking and many others. Hence it is equally important to develop both side of brain. It is also most important to take steps to keep both the brain much active, by keeping them to perform analytically on an equal basis. It is the responsibility of parents to give activities to their children that ensures the involvement of both brain. If both brain used by children it is probable to enhance their learning power and they can also increase their brain power. If brain development programs are offered to children they can make most of the program and develop their skills to give work to both side of brain and remains high in intelligence level. Development of brain in human beings is based on the degree of how much it is used. If it is left unused there are more probabilities for individuals to lose as brain works on the basis of use it or lose it.

To ensure the progressive brain development in children, it is the role of parents to introduce their children with a reputable brain development program. Most of the experts suggest step by step educational program to the children which is systemic and efficient. Nowadays it is very simple to find out a lot of schools which not only gives importance to academic program, but they also boost the creativity of children through their extracurricular activities. It is probable to search internet and get hold of relevant schools that present with a variety of activities to stimulate the brain and encourage the development of children. A total development program to stimulate mental activity of children is also found out in the online sites and parents can try out these activities with their children while they are at home. Getting education from a school that implements total development program is much beneficial. Search for such schools and secure admission to enhance the future of the children and boosts in brain development.

Is India Geared Up for Business Method Patent?

Introduction

Today technology is changing expeditiously. New technical inventions are taking place in huge number. These new inventions open new field of subject-matter for protection under Intellectual Property Law. Intellectual Property law gives an umbrella protection to new inventors. Patent provide protection for those line of process, products which are novel and are capable of proving that it involves an inventive step. USPTO grants maximum patents in a year. The paper written here advocates the invalidity of Business Method patent in Indian scenario. Business method today is capable of IP protection in countries like USA, Australia, Japan and New Zealand. India is against granting of protection to Business Method.

Definition: Business Method Patent

Business Patents are those patents which are given to business methods or business systems or like. A business method may be defined as “a method of operating any aspect of an economic enterprise”. Business method patents are part of a larger family of patents known as utility patents, which protect inventions, chemical formulas, processes, and other discoveries. A business method is classified as a process, because it is not a physical object like a mechanical invention or chemical composition.

Background To Business Method Patents

Business Method Patents were not considered as a subject matter for protection under Patent Law. Earlier Business Method was considered as an abstract idea and was thus not falling under the purview of Patents. But by a decision by a Federal Court even Business Method have been granted patent protection. Section 101 of US Patent Act defines Inventions which are capable of Patent protection.

A combine reading of Sections 101, 102, 103 and 112 will lead to following construction:

o Any process, machine or composition of matter may be patented if;

o It is new (Novelty Section 102), Non-obvious (Section 103) and is capable of adequate description and invention (Section 112).

Protection Under TRIPS

TRIPS also provide subject matter for patent protection. Article 27 paragraph 1 of the agreement on Trade-Related Aspects of Intellectual Rights (TRIPS) provides that “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application…”

Further, Article 27 paragraph 2 of the TRIPS agreement permits Members to “exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”

Cases In Which Business Method Was Upheld

Concept of Business method patent is now a decade old. State Street case is an important decision in this regard. Further developments have taken place after this judgment.

Business Method was considered as an exception to Patent protection until 1998. The first case of this kind was filed in the year 1908. In Hotel Security case the question was whether business methods can be said to be patentable. Here the case rejected the argument of it being capable of protection and created a per se exception to business methods. It was until year 1998 that this position was accepted.

1. State Street Bank v. Signature Financial Group, Inc.

In the present case the District Court had rejected application for Business Method Patent on the said process of “hub and space”. But Later the Federal Circuit confirmed that there is no rule which prohibits the patentability of “business methods.” The Court stated “The judicially-created business method exception to patentability is . . . an unwarranted encumbrance to the definition of statutory subject matter in section 101 that should be discarded as error-prone, redundant, and obsolete.” It merits retirement from the glossary of section 101. Patentability does not turn on whether the claimed method does “business” instead of something else, but on whether the method, viewed as a whole, meets the requirements of patentability as set forth in Sections 102, 103, and 112 of the Patent Act.

Federal Court further clarified that it was never intended that business methods should be kept out of the subject matter. Rather in earlier few cases claim was rejected due to incapability of those methods to be taken as inventions. Thus, State Street confirmed that business methods can be patented if they meet the statutory requirements of utility, novelty and non-obviousness.

2. Amazon.com Inc. v. Barnsandnoble.com

In this case one-click patent to Amazon.com was criticized by few writers on the ground of it being “unplanned mutation”. Here an injunction was granted to Barnes & Noble for not using the said feature. This case clearly reflects drawbacks that can arise in case a business patent is protected in countries which are still developing their technologies. Later part of my paper deals with disadvantage that granting a business method patent can have.

Amendments Brought After State Street Case

Now that the situation is clear with respect to business method patents in US laws, it can be said that business method are capable of granting patent protection. But in order that no ambiguity remains the USPTO publicly announced that in terms of granting protection sufficient prior art search should be undertaken.

1. Class 705

A new classification (Class 705) was introduced for the filing of business method patents under the more generic utility patent applications: “Data processing: financial, business practice, management or cost/price determination.” Specifically, Class 705 includes sub-categories for industries such as health care, insurance, electronic shopping, inventory management, accounting, and finance.

2. Amendment In Title 35

Section 100 Title 35, United States Code, was amended to provide for improvements in the quality of patents on certain inventions. Thus, ‘Business Method Patent Improvement Act of 2000”was passed. The term business method patent has been defined under the Act. What is surprising is the fact that under the definition any “technique used in Athletics” can also be qualified as a Business Method Patent.

Interim Guidelines

For providing better uniformity in the system Interim Guidelines were published for Examination of Patent Applications for Patent Subject Matter Eligibility on October 26, 2005

Lacunas Prevalent In Method Adopted At USPTO

It has been observed that the method of granting patent in USPTO is without a substantial base. Patents at USPTO are granted not on a quality basis, rather on quantity basis. The following are serious lacunas which should be given a serious thought:-

1. In USPTO examiners are not properly trained to search prior art. Prior art search is scattered and hence proper care is required while doing a prior art search. But since the examiners are not provided with enough resources quality somewhere lacks while granting a Patent

2. Further it has been observed that in USPTO examiners get bonuses on allowing a patent rather than rejecting it. Hence the result can be seen more the acceptance by examiners, more the bonus. The process should change and bonus should be given only while rejecting a patent.

3. Once a patent is granted USPTO doesn’t conduct a review or quality control.

4. Mostly claims use ambiguous language which leads to more confusion in mind of patent examiner.
Thus affecting the quality of specific invention.

Disadvantage O Granting a Business Method Patent

1. Once a patent is granted for an invention it is capable of securing the rights of patentee for a period of 20 years. Thus it can be well understood that if patent is granted for a business method then it would obstruct new technological research for the next 20 years to come.

2. Granting a patent on business method would create a monopolistic situation which would hinder growth. It would mean an unhealthy competition.

Advantage Of Granting A Business Method Patent:

1. Copyright protection is insufficient to protect Business method. All Research and Development that is done requires that something more that Copyright protection should be given in order to reward Business ideas.

2. Start-ups should be encouraged. New companies would benefit with a concept of such kind. Initially patent protection to such starting groups would definitely benefit them in order to have a strong stand in front of powerful companies. Business method patents create the artificial scarcity needed to preserve market power and restore the incentive to innovate.

Solution For A Business Method Protection

1. The paper here accepts granting of business patents but not at the cost of technological or economical growth. Thus in order to benefit both inventor and other co-inventors in line it would be better to grant patent protection only for a limited period of 3 years for Business method Patents. Thus law should help in sustaining a collaborative effort.

2. Change in the Patent System at USPTO is also required. The one sentence rule should be eliminated so as to faciltitate clearer language. Thus, it would help patent examiners and also leave less scope for manuplation by patent lawyers. Also person applying should disclose his computer code to the patent examiner.

3. Salary of Patent examiners should be increased. Also USPTO should give bonuses on rejecting a patent application rather than on accepting it as earlier mentioned in paper.

Should Patent Be Granted On Business Method In India

India is a developing economy. We are still unable to cope up with many threats like poverty, unemployment and population. In global market India is considered as a growing economy. Our youths are taking India to greater heights. All this reflect that we require a technological and economical boom. It needs to be mentioned that countries which have granted business method patents are developed countries. Conformance with TRIPS is particularly slow in developing countries, notably Argentina, Brazil, India and Egypt. Further I believe that granting a business method patent in India would impede technological growth in our country. Hence I am of opinion that business method patent should not be granted in India.

Conclusion

With boom in intellect ideas in corporate world it is required that these should be protected and respected. But fortification of these ideas by means of patent might not be profitable at this stage in developing countries. Grant of business method patent in US saw mixed reactions from experts of law. Moot problem was the modus operandi for granting of business method patent at USPTO. US have also drafted an Act called Business Method Patent Improvement Act of 2000 with respect to protection of business methods ironically athletic techniques are also within the purview of Business methods.

Patent over a particular invention protects it for a period of twenty years. Thus a patentee acquires an exclusive right over it (subject to Patent Act) and thus has right to prevent infringement of it during the said period. Thus in case of protection to business method the patentee would be in a position to stop the claimant of patent for a period of 20 years. Thus it would imply that business related methods/ideas would be retarded for such a long period. It can be thus concluded that Business method may be granted but it should be granted for a lesser duration of time and preference should be given to new companies. Thus Indian Patent system may move a step ahead for grant of Business method patent in future but not at present. It would be beneficial that there is no amendment in Section 2(k) of Indian Patent Act, 1970 for the next five years.