The rise of emerging technologies, especially those involving cross-sector digital transformations is a common phenomenon across the world. With new inventions and innovations, an increasing number of patents are being filed for disruptive technologies such as artificial intelligence, machine learning and augmented reality.
NASSCOM (National Association of Software and Service Companies) published a report in April 2023 titled ‘Unpacking India’s IP Ecosystem.’ As per this report, more than 5,84,000 patents have been filed in India between 2010 and 2022. 45% of these patents belonged to the technology sector.
What Are Emerging Technologies?
Emerging technologies refer to both new technologies and existing technology undergoing continuous development. The term is intrinsically connected with the concept of the Fourth Industrial Revolution, a phrase coined by Klaus Schwab in 2016.
The Fourth Industrial Revolution refers to the blurring of boundaries between the digital, physical and biological worlds. It blends the advances in Artificial Intelligence (AI), the Internet of Things (IoT), robotics, blockchain, quantum computing, genetic engineering and other emerging technologies.
There has been a steady rise in the number of emerging technology patents filed in India. Of the overall technology patents filed in India in 2022, the share of emerging technology patents rose to 72.9% from 48% in 2010 as per the NASSCOM report.
Here are some of the key emerging technology domains:
● Artificial Intelligence
● Blockchain
● Pattern matching and image analysis
● Cloud computing, edge and real-time processing
● Nanotechnology
● Quantum computing and cognitive computing
● Big Data analytics
● Internet of Things (IoT) – Building/factory automation, connected healthcare and smart wearables
● Electric and hybrid vehicles, fully autonomous driving, ride-sharing, traffic control
IP Rights for Emerging Technologies in India
India strives to facilitate an environment encouraging industrial and technological growth through its Intellectual Property (IP) laws. The country was a signatory to the Trade Related Aspects of Intellectual Property Rights (TRIPS) in 1994, which set minimum standards of IP rights among WTO members.
The country has various legislations governing IPR, including the Patents Act, 1970; Copyright Act, 1957; Trade Marks Act, 1999; Designs Act, 2000; Semiconductor Integrated Circuits Layout-Design Act, 2000; and the Geographical Indication of Goods (Registration & Protection) Act, 1999.
These laws protect patents, trade secrets, trademarks, copyrights, industrial designs geographical indications and data protection in India. Both civil and criminal proceedings can take place for the infringement or ‘passing off’ of trademarks. The overall management and economics of intellectual property rights have undergone substantial change over the years.
IP Strategies for Protecting Emerging Technologies
The following are some of the IP strategies used in the emerging technology sector.
- Offensive Patent Strategy
Companies apply for patents as soon as possible to secure patent rights for their inventions. By adopting an offensive strategy, they aim to prevent competitors from entering their business sector or emerging technologies. Filing and maintaining a large number of patents is expensive. But, companies can recover the money and earn revenues by licencing or selling their patents later.
- Defensive Patent Strategy
Companies aim to prohibit competitors/individuals from securing a patent on the same idea by using a defensive patent strategy. It mitigates the risk of competitors patenting the same idea. While the expenses involved are considerably less than an offensive patent strategy, people cannot earn revenues from a patent portfolio created using a defensive patent strategy.
- Strategic Patenting
Companies or individuals employ strategic patenting during patent prosecution to improve a patent portfolio's position in a particular technological area. It neither fosters technological innovation nor does it protect the innovation from being copied. Its primary objective is to prohibit competitors to come up with innovations in the same area of emerging technology.
- Patent Pledge
Patent pledging is an open IP strategy where patent-owning entities make their active patents available for use for free or at a reasonable cost. For instance, Elon Musk announced in 2014 that Tesla, the electric car maker will "open up its patents" for the overall advancement of EV technology.
Open sharing of knowledge without barriers allows for external innovations that facilitate the exponential growth of the sector. With Tesla’s example, it led to the inclusion of new players developing EVs that would use Tesla’s electric charging stations.
Top Tips for Companies in the Field of Emerging Technologies
Here are a few important tips for protecting patents for emerging technologies:
● Protecting Ownership of IP and Company is Important
Having a mutual agreement with co-founders regarding IP and company ownership will help to avoid legal troubles down the line.
● Assess Core Assets and Decide on IP Protection
Companies dealing with emerging technologies must assess their core assets and decide on an appropriate IP strategy. Many tech startups hesitate to invest in intellectual property and consult specialist intellectual property law firms.
● Plan for an exit strategy
SMEs can leverage their IP while developing their exit strategy. Particularly when a company is looking to sell its business or merge with a larger company, a valuable IP can be an asset worth its weight in gold. Planning a smart and advantageous exit strategy can help SMEs make intelligent IP investment decisions.
Why File IP Applications?
Enumerated below are the reasons why inventors file IP applications:
● When a tech company dealing with emerging technologies such as AI or ML (Machine Learning) files for IP rights, they prevent others from coming up with a duplicate idea.
● It ensures exclusivity which helps businesses to flourish and maintain a competitive edge, thereby making the company much sought-after.
● Patents allow individuals and companies to generate revenue through licensing and selling patents and trademarks.
When to Start Filing Patents for Emerging Technologies?
Filing a patent application should be done at the earliest possible date. It should not be delayed at any cost. When an application is filed with provisional specifications and reveals the essence of the nature of the invention, it helps the concerned authority to understand its priority.
Delay in filing patent applications involves these risks:
- Other inventors may file a patent application for the same invention
- Inadvertent publications of the said invention by the inventor or others may lead to legal complications.
Where to File for Patent on Emerging Technologies?
When working with a challenging budget it is important to know the jurisdictions to choose for patent protection for emerging technologies. For cutting edge technology it is prudent to choose anywhere from 2 to 6 countries where your product is likely to be used or imported into. The choice of countries would ultimately depend on specific business plans and strategies.
According to the 2022 WIPO IP Facts and Figures the top technology fields of the major 5 countries as follows:
China – Computer technology, Electrical machinery, Energy, and Measurement
Germany – Transportation, Electrical machinery, Energy, and Mechanical elements
Japan – Electrical machinery, Energy, Transportation, Computer technology
Korea – Computer technology, Electrical machinery, Energy, and Semiconductors
USA – Computer technology, Medical technology, and Digital communication
Of course, monitoring the filing patterns of competitors and prominent companies in your industry could help you with your filing strategy.
Future Scope of IP Laws for Emerging Technologies
In 2021, the Parliamentary Standing Committee on Commerce undertook a review of Intellectual Property Rights in India. It presented the 161st report titled ‘Review of the Intellectual Property Rights Regime in India' to both houses of Parliament on 23rd July 2021.
The Parliamentary Committee recommended a separate category of rights for AI and AI-related inventions and solutions. Separate laws governing emerging technology inventions would help in their protection under IPR.
As per the recommendation of the committee, algorithms or mathematical methods should be linked to a tangible technical device or a practical application. Such conversions of mathematical processes would make it easier for protecting the algorithms as patents. It remains a popular practice in Europe and the United States of America.
Conclusion
The number of emerging technology patents will keep rising in India with an increase in scientific innovations and stronger IP laws. The Government of India has also undertaken various initiatives to boost IP awareness in the country. However, many challenges remain, including lengthy patent filing duration, high costs and the lack of expertise among patent officers.
Despite these challenges, having an effective IP strategy is necessary for emerging technology companies. It remains a crucial investment in this sector as it provides a lot of options to firms to succeed.