While not all workable ideas are patentable but not all workable ideas need to be as great as invention of airplane or rocket for them to be patentable. Most patents are on incremental improvements, so how can startups & MSMEs create patent assets?
At Aumirah, we firmly believe that there is no such thing as “IP or patent strategy”. I, personally, rather cringe at every time I have to somehow use this phrase to convey a similar meaning. What we believe in is that – there is always a business strategy, and IP or patents attach themselves to that business strategy to essentially protect that business strategy. So, patents are, effectively, one of the layers of the armours around business strategy. Therefore, every sound business strategy concerning introduction of new products in a market, especially where stakes are high, will take into account the creation of patent assets.
It is a common misconception among startups and MSMEs that for a product or process to be patentable, it must be ground-breaking or something really profound or has to have a “major” improvement, and in that, as I have often noted in my discussions with CEOs, directors and managers of several MSMEs, they often end up losing their “what-could-have-been-their patent rights”. They realise it much later that one of their inventions, the one they thought was just a “minor improvement”, could not only be patented but may also have been successfully enforced. Yet, despite this newly gained knowledge, they struggle to put a respectable patent portfolio in place. The number of quality patent filings remains low. The reasons and remedies for the same will be explored in this essay later.
WHAT IS PATENTABLE?
A workable idea, around a product or a process, remains patentable, irrespective of whether the improvement is “minor” or “major”, if it qualifies three simple criteria of novelty [newness], inventive step [non-obvious] and industrial utility. Additionally, Indian law also provides for “what are not inventions“. Out of the three major criteria, the criteria of inventive step, is what leads to a patent asset, given that the product being launched has novel features or is made by a novel process. The inventive step, in turn, can be proven by several techniques. Indian Patent Office usually employs problem-solution approach i.e., giving a solution to a long-standing problem in a technical field. In fact, Indian Patent Office even allows to make an economic argument to bolster and prove inventive step i.e., if your product or process brings down the cost, of manufacturing or using, an article, or is a cheaper substitute for an expensive product, Indian Patent Office is likely to consider that as a suitable argument to conclude inventive step. A lot of examples can be given to the readers of the granted patents for seemingly “simple” inventions such as Handlebar grip assembly with illumination (Minda Industries, Indian patent 2,99,252. July 26, 2018). Maruti Suzuki has patented an automobile sun visor having perforations in the carboard of sun visor that leads to improved safety (AN IMPROVED SUNVISOR IN FOUR WHEELERS FOR BETTER SAFETY PERFORMANCE OF THE SUNVISOR, Indian patent 3,04,640. Dec 19, 2019).
CREATING PATENT ASSETS FOR MSMEs
The Problem: While, for solving and analysing the patentability of your new product or process, you can engage a qualified patent agent, yet startups/MSMEs will often struggle to actually have a patent in practice. In my opinion, startups/MSMEs in India struggle with creation of patent assets not because there is no innovation or inventions or there is dearth of inventors/innovators in startups/MSMEs. My experience has been quite opposite. Indian MSMEs, perhaps, has one of the most innovative and inventive work forces especially in engineering and pharmaceutical sectors. They identify peculiar problems and come up with smart, specific solutions to those problems.
The main problem with MSMEs in creating patent assets is two-fold. Firstly, majority of their managers and researchers come from hardcore engineering background, and are natural tinkerer, innovators and inventors. Two, due to first, they often lack “skills” to sit before a PC to fill long invention disclosure forms, and therefore, lack this peculiar skill of documenting knowledge, which is actually stepping stone to creating patent assets. I am now tempted to another fold – the SMEs and startups usually run on vision of founders and as such they have a lot on their plate, and yet IP as a function isn’t advisable for delegation to middle managers in SMEs/Startups.
The Solution: With advent of smartphones and apps, the above no longer remains a problem. The knowledge can now be recorded via different media such as videos and audios. In this, the patent agents too, need to up their game. They need to go back to their engineering and science education, revise their basis, and be patent agents worth their salt to understand such disclosures quickly and efficiently, draft a competent patent specification. Therefore, it is incumbent upon the owners/CEOs of MSMEs as well as the patent agents to come up with mechanisms that enables seamless and complete knowledge documentation from those tinkering and innovating at the floor or from themselves, and then come up with patent assets accordingly. At Aumirah, we have innovated and gained expertise over such innovative mechanisms of obtaining disclosures. We have our colleagues trained in rather extracting information from the “raw data” as provided by startups/SMEs in form of simple write-ups, hand written notes and at times short explanatory videos.
Conclusion: Innovating new mechanisms of obtaining disclosures and recording knowledge, from computer/desk-job averse shop-floor innovators/inventors/tinkerers of MSMEs and too-occupied-and-doing-everything-for-their-startup founders, may lead to drastic improvement in creation of patent assets among startups and MSMEs. At Aumirah, we have almost perfected our understanding and expertise in this, and use our technical/engineering/science backgrounds to the hilt, and work with shop-floor innovators/inventors/tinkerers as well as with business owners/CEOs to assist MSMEs/Startups in creating durable patent assets in India and abroad.
