There are three major criteria to get an invention patented. They are: novelty, non-obviousness and usefulness.An aspect that would be a real help in increasing patent registration as well as awareness would be having link ups and coordination with universities and research centres, which area good source of expertise in the related fields and new inventions. Both students and researchers would be encouraged if the patent registration process was easily understandable and accessible to them
Our Patent, Design and Trademark Act, 1965 has a provision for the registration of patents, however, what is patentable is not clearly mentioned, but what cannot be patented is mentioned in section 6 of the Act.
Patent is an exclusive right given to someone for their invention in any field, which can be further used for the well-being of society and its people.
According to TRIPS, patents shall be available for all 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. Patents shall be available, and patent rights are enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
A patent is an intellectual property right, where the government gives exclusive right to an inventor over the invention. And mutually, such an invention helps society to develop and also helps in the spread of new knowledge to accelerate further innovation. Patents stimulate economic and technological development and also promote competition by creating financial motivation for invention in return for the disclosure of the invention to the public.
Humankind is developing and growing all because of innovations and creativity.
A state or society with more innovations and inventions are definitely ahead in terms of development and many other aspects, too. China, the USA and Japan are the top three countries granting patents, and this is visible in their development, too.
Records show that only 76 patents have been registered in Nepal so far. And only eight patents have been registered in the last 10 years. No foreign patents have been registered in our country.
In the case of Nepal, Patent, Design and Trademark Act, 1965 has provisions for the registration and protection of patents for the inventors.
The Industrial Property Section of the Department of Industry (DoI) looks after the registration and renewal of patents, designs and trademarks here in Nepal.
In general, the principle of novelty, non-obviousness and usefulness is examined to register a claimed patent. Unlike other intellectual properties, the examination process for a patent requires expertise and highly knowledgeable persons in the related field due to the complexity of the subject matter in the patent itself, which are lacking in our government body.
Unlike other intellectual properties such as trademarks and designs, a patent is considered to be hard intellectual property, thus, it requires an expert on a particular subject matter who understands its process, formula, principles and many other things to declare a claimed patent as novel, inventive and having industrial applicability.
Another important aspect in this patent is prior art. Prior art is an evidence that an invention is already publicly known or available, in whole or in part, before the effective filing date of that patent application.
So, in order to ascertain and recognise whether an invention is novel and non-obvious, and also to save time and to avoid lengthy disputes, patent search is a basic step. This search will help to identify whether the claimed invention is similar to a prior art or not.
However, mere similarity with a prior art might not qualify the invention to be non-patentable, but such invention cannot be the same as the already known or disclosed principles or formulas. Also an invention to be patentable depends upon how different such a claimed invention is from the prior art because everything is made or invented based upon already invented principles and formulas.
Another reason why our government is lagging behind in patent registration is also because of the absence of a required database system in our patent office. A database system is a basic yet an important feature required in the process of registering a patent, which assists us to know if the submitted invention is new, while also determining whether an invention is a prior art or not.
It must be known whether any patent submitted for registration is novel or not.
For that, patent search is essential to know if it matches with a prior art, and if it does, to what extent the patent is similar to the prior art.
An aspect that would be a real help in increasing patent registrations as well as awareness would be having link ups and coordination with universities and research centres, which area good source of expertise in the related fields and new inventions.
Both students and researchers would be encouraged if the patent registration process was easily understandable and accessible to them. Also a system of online application for registration of intellectual property is a recent requirement in our country.
Manual filing and application is one of the reasons for making the registration process complex.
Therefore, these mentioned limitations might have come on the way while registering a patent.
Thus, lack of knowledge among the employees at the DoI, absence of database for patent search and lack of expertise are the reigning hurdles putting a brake on the initiation of the registration process by foreigners, and this might be one of the reasons for few numbers of patent applications in Nepal.
Nevertheless, invention and innovation cannot be forced, they happen due to curiosity and when resources are available. Thus, invention must be encouraged by providing easy accessibility to resources as well as by uplifting and aiding institutions and organisations which provide platforms for the researchers, especially in developing countries like ours. This will ultimately help in the development of the nation.
Regmi is an associate at Apex Law Chamber
A version of this article appears in the print on March 5, 2021, of The Himalayan Times.
