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.

Branding: How Poly Bags Can Explode Your Brand Awareness

Now more than ever organizations need to think outside the box (pun intended) and move past traditional advertising mediums to market their brand. No longer does the largest marketing budget guarantee success in sales or brand recognition. Instead innovative and daring companies are leveraging their creativity to use new mediums such as poly bags to explode their brand awareness. Only companies capable of embracing change, with the ability to look beyond traditional marketing, will hold their own in an increasingly competitive economy.

As a business leader focus should be on grabbing a prospects attention in a meaningful and compelling way. Custom branded packaging with poly bags is a worthwhile solution to pursue. It is an easily customizable branding medium that has yet to be fully adopted by many organizations. Even those with multimillion dollar budgets have yet to make the move to custom branded poly bags..

Lets review what custom branded packaging is, how it can help strengthen your brand, and what you should look for in a partner to help you along the way to using this innovative type of packaging.

What Are Custom Branded Poly Bags?

Custom branded packaging comes in many forms but for online retailers or any business interested in making a statement about their brand, they should strongly consider the advantages of custom printed and branded plastic envelopes or poly bags.

Using poly bags provides a new avenue to reach out and grab your prospect’s attention. Since poly bags are fully customizable you can go all out with a full photo quality image or something a little more intimate like your logo and contact information. You’re limited only by your creativity with this versatile packaging option.

Poly bags can be produced using a custom color or a standard white or clear film. They can be a stock size or cut to fit your specific needs. They can have a perforation for ease of use or no perforation for added security. Adhesives are standard and can be provided as a single strip for single use mailers or double strips to provide returnable shipping options. As you can see poly bags are a versatile option to better brand your business and products.

How Poly Bags Help Build Brand Awareness.

Custom branded packaging provides a low-cost alternative to traditional marketing avenues. It is yet one more extremely effective way to market your business and products beyond the normal means. After all, packaging is the last impression a customer will see after making a purchase so it should make a statement to promote your organization and brand.

Not only is custom branded packaging a novel way to market your brand. It broadens you advertising reach without a huge initiative and it won’t draw from your standard advertising budget.

Another great attribute of custom branded packaging is it helps you stand out from your competitors. Especially since many of them have not made the move to update their packaging yet. They still focus on the cost of custom poly bags over the value gained by using professional looking, brand centric packaging.

Although compared to traditional packaging such as plain or stock poly bags, custom branded packaging has a premium cost attached to production. Though it is still vastly less expensive than other means of advertising and brand marketing such as TV, radio, and print ads. Custom branded packaging will pay for itself many times over.

How To Implement A Custom Branded Packaging Initiative.

When implementing an initiative like this you’ll want to find a reliable designer and manufacturer who specializes in custom packaging. They should have a solid record in their industry and the capabilities to accommodate your needs.

You should make sure the manufacturer you work with has in-house expertise to help you not only design the specifications for your bag (size, thickness, adhesives, etc) but also have the capabilities to meet your delivery schedule. Whether your usage is budgeted at a few thousand or a few million, you’ll want to work with a partner that will help you make the most of your custom packaging.

In the end custom branded poly bags are a surefire way to not only explode your brand awareness, but also deliver a value added benefit to your customers by providing professional looking packaging they can look forward to receiving. Inexpensive compared to other advertising means, custom packaging will help set you apart from your competition.

Writing for Children – Step-By-Step Through Educational Publishing

If you enjoy writing nonfiction and love to research topics in all sorts of different subject areas then educational publishing just might be right for you. Many educational publishers need writers. Surprisingly, though, these publishers generally don’t advertise that fact to writer’s magazines or market guides. So here’s how to get started in this active market.DEVELOP A FOCUSThere are basically two different areas of focus you can take in educational publishing. The first is on writing nonfiction (and some fiction, too) that will be used directly by children (sometimes with the help of a parent or teacher). This type of material includes reference books, early-readers, remedial readers, textbooks, educational games, workbooks, and even CDs.The second focus available in the educational market is creating and developing materials that will be used with children by parents, librarians, and teachers. These materials include everything from books of language arts activities designed to help teachers in the classroom, to books of bulletin board ideas and finger puppet patterns.It doesn’t really matter which focus you choose. There are dozens of opportunities available for writers who want to develop educational materials directly for kids, as well as opportunities for those writers who wish to develop materials for teachers and parents to use with kids.ASSESS YOUR SKILLS AND BACKGROUNDTo develop a focus in educational publishing you will need to assess your skills and background. If you have experience as a preschool or elementary school teacher or librarian, for example, there are many educational publishers who might like to work with you.Do you speak fluent Spanish, in addition to English? Then you might be able to freelance for educational publishers that produce books for children who are learning English as a second language.Even if you don’t speak Spanish (or any other foreign language for that matter) and you’ve never been a librarian or a teacher, you can still break into children’s educational publishing. Many publishers don’t require authors to have a background in education. They simply want good writers who know how to thoroughly research a topic and write about it in a way that children will find interesting and easy to understand. An excellent way to test your researching skills will be to research different educational publishers. Find out which ones do hire writers without teaching experience, and which ones do hire writers to develop projects they create in house (more about this later).DEVELOP YOUR RESUME OR BIOOnce you develop a focus for the type of educational materials you want to create, you will need to let publishers know you’re available and what you have to offer. For this you will need a brief bio or a resume. A bio (short for biography) consists of a few sentences or paragraphs that describe your background and publishing experience. The back inside cover of most books (both fiction and nonfiction) usually includes a short bio of the author. Read the bios of a few of your favorite authors until you get the hang of how a bio should be written. You probably won’t have as much publishing experience as your favorite author, but you’ll still be able to come up with a sentence or two that describes your work as a writer and/or educator. It might be something as simple as, “Mary Roberts is a former third grade teacher with over 20 years of experience in the classroom. While she was teaching, Ms. Roberts developed a wide variety of activities to use with her students.”A resume is longer than a bio. It should include a list of your publishing credits, any writing related experience, and a list of your teaching experience (if applicable), as well as your education.In addition to a bio or resume, you’ll need to get good at writing cover letters. A cover letter simply introduces you to the publisher and explains that you are either looking for assignments with this publisher or you wish to submit your own ideas for publication. If you hope to submit your own ideas for publication, you’ll need to learn how to write a proposal or prospectus. Many publishers have guidelines for proposals at their website. In fact, some publishers even have a form you can complete online that will let you pitch your idea directly to an editor to see if there’s any interest in your idea before you go to all the work of developing a full proposal.Generally, a proposal should include an outline or a table of contents for the book you are proposing, an introduction or overview, and enough sample pages to give editors a clear idea of the book you are proposing, as well as your writing style. If you’re proposing a book with illustrations, yet you’re not an illustrator, don’t worry about the illustrations. Simple drawings that make your ideas clear will be sufficient. Usually the publisher has artists on staff, or will hire an outside artist, to illustrate your book if it is accepted for publication.STUDY THE MARKETSOnce you’ve developed a bio or resume, it’s time to start studying the markets. Skim through the pages of a current children’s book market guide to find listings for a wide array of educational book publishers that produce materials for children, parents, and educators. Many of these listings include the URL for each publisher’s website. Go to publishers’ websites that you are interested in writing for to see if manuscript submission guidelines, along with information about their current needs, are posted there. Search these websites carefully. Sometimes the manuscript submission guidelines are a bit difficult to find. Look under the “About Us” or “Contact Us” pages if you don’t see a link directly to submission guidelines. Once you get to the guidelines, study them carefully. Also, study the kinds of books and other materials this publisher publishes by looking through their online catalog or list of products.Also send off for publishers’ catalogs, then look through them to see how much space is allocated to each subject. If most of the space in a catalog is allocated to products about science, for example, then you will have a better chance of selling science related products to this publisher than you would materials for other subject areas.CONTACT PUBLISHERSOnce you’ve developed a bio and resume, and you’ve studied several educational publishers, you’ll need to contact the publishers that interest you. If you don’t have a manuscript you wish to submit, but would like to write for a particular educational publisher, send a cover letter asking if they hire writers to develop titles they create in house. Include your bio or resume, along with a few clips of articles you have published (if you have them) or some writing samples.As you gain writing experience and acquire more writing credits, chances are you will also develop more contact with other writers. Learn to network with these people to find out about additional opportunities with educational publishers.In the end, most educational publishers just want good writers and researchers. If that describes you, then educational publishing just might be what you’ve been looking for to get your writing career off the ground.