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flIPstaan+: Patentability Analysis of Invisibility Device of ‘Mr. India’

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SEASON 1

BONUS EPISODE – 3rd August, 2020

On the fine morning of 2ndof August 2020, Mr. Ankit Rastogi woke me up from my bed, to discuss not so much of a eureka moment.

He wanted me to provide him an off the cuff patentability analysis of the invisibility band used by Mr. Arun Verma (character played by Mr. Anil Kapoor) in the movie Mr. India.

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So, I explained that the invisibility band would not be considered as an invention under Section 3(a) of the Patents Act, 1970. Section 3(a) of the Patents Act, 1970 states:

“The following are not inventions within the meaning of this Act,….

  • an invention which is frivolous or which claims anything obviously contrary to well established natural laws;”

A classic example of an invention that would be barred under Section 3(a) of the Patents Act, 1970 is a time machine, for the reason that time travel does not exist (yet) and such an invention would be considered as “obviously contrary to well established natural laws”. The invisibility band, in this case, is “obviously contrary to well established natural laws”.

But since the Socratic method[1] always wins, the discussion highlighted an interesting principle in patent law and the only exception to the principle. The premise to the principle is that the only form of intellectual property protection awarded to an idea is patent protection. An idea is not protected in any other form of intellectual property right. For example, copyright only protects the expression; trade mark protects the goodwill and brand equity; and lastly design protects the aesthetic looks.

The principle is that an inventor with a patentable idea can apply for patent protection for that idea, without putting the idea into practice. Therefore, no working model[2] of the idea is required as long as the idea is completely disclosed in the detailed description, to enable a person skilled in the art to perform the invention (idea) without undue experimentation.

The only possible exception to the above rule is an invention so groundbreaking and disruptive that the current state of the art or the scientific community believes that such an invention is impossible. Such a disruptive invention would have to be demonstrated in practice before the patent office, to overcome the objection of Section 3(a) of the Patents Act, 1970.

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Now having done the analysis of the invention in Mr. India under Section 3(a) of the Patents Act, 1970, I realize that the proposed invention is a work of fiction which is used by a fictional character in a cinematic movie which is also a work of fiction. Therefore, in this fictional world of Mr. India we can assume the Section 3(a) of the Patents Act, 1970 does not exist or rather is not applicable.[3]Nonetheless, if you don’t agree with this assumption and insist that section 3(a) of the Patents Act, 1970 is an integral part of the Patents Act, 1970 in pith and substance and should also exist even in this fictional world, then so be it. The applicant would be able to demonstrate the practice of the invention before the patent examiner, just as Mr. India demonstrates the practice and existence of the invention before Mr.  Gaitonde (Mr. Annu Kapoor’s character) in the movie.

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In the light of the above context, I will now continue with my patentability analysis of the proposed invention. The proposed invention is a band, which when activated, makes the user of the band invisible to the naked eye, except under the wavelength of the colour red. 

The prior art analysis of the invention would not be necessary considering that such a band or rather even the technology did not exist. Interestingly, it can be argued that in the event an objection under Section 3(a) of the Patents Act, 1970 is raised by the patent office and cleared by the inventor, then there is an estoppel on the patent office against raising any further objections in relation to the novelty or inventive step of the invention. This is for the reason that if the patent office claims that the invention is impossible and ‘obviously contrary to well established natural laws’ it is also implied that the patent office believes that such an invention does not exist in prior art.

The following may be the claims covering the invention in the patent application:

  1. A method of inducing optical invisibility in an object, the method comprising:

receiving, by an invisibility apparatus,  one or more wavelengths of light reflected by the object; wherein the one or more wavelengths of light is not the wavelength of the colour red;

receiving, by the invisibility apparatus, the shape and size of the object;

determining, by the invisibility apparatus, a negative wavelength of each of the one or more wavelengths of light reflected by the object;

broadcasting, by the invisibility apparatus, the negative wavelength of each of the one or more wavelengths of light reflected by the object based on theshape and size of the object; and

inducing optical invisibility, by the invisibility apparatus, based on the broadcasted negative wavelength.

On second thought, the result of the above claim would be that the object is completely dark, not invisible. Let’s take another shot at this.

  1. A method of inducing optical invisibility in an object, the method comprising:

receiving, by an invisibility apparatus, one or more images from the background in which the object is placed, wherein the background is not in the wavelength of the colour red;

receiving, by the invisibility apparatus, the shape and size of the object;

broadcasting, by the invisibility apparatus, the one or more images in front of the object based on the shape and size of the object.

inducing optical invisibility in the object, by the invisibility apparatus, based on the broadcasted one or more images.

  1. An invisibility apparatus for inducing optical invisibility in an object, the apparatus comprising:

at least one processor; and

a memory storing instructions executable byat least one processor, wherein the instructions configure the at least one processor to:

receive the one or more images from the background in which the object is placed, wherein the background is not in the wavelength of the colour red;

receive the shape and size of the object;

broadcast by the invisibility apparatus, the one or more images in front of the object based on the shape and size of the object; and

induce optical invisibility in the object based on the broadcasted the one or more images.

The most difficult part in the patent application would be the detailed description of the invisibility band, wherein the detailed description must not only disclose the working of the invisibility band but also the scientific principles that enable the invisibility band to induce invisibility, enabling a person skilled in the art to create another invisibility band.

Now let’s examine who can file for a patent for the invisibility band (Section 6 of the Patents Act, 1970).

It is pertinent to note that the invisibility band was not invented by Mr. Arun Verma, but by his father who is deceased in the movie.

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So, if Mr. Arun Verma is to apply for a patent on the invisibility band, does he have the legal right to do so. The answer is yes, but only if Mr. Arun Verma is the legal heir or representative of his father. Under Section 6 (1)(c) of the Patents Act 1970, an application for a patent for an invention may be made by the legal representative of any deceased person who immediately before his death was entitled to make such an application.

Lastly,  I end this article with not a conclusion but rather two questions:

If you were Mr. India, would you disclose the technology and the working of the invisibility band and let go of the exclusive trade secret in exchange of few claims in a patent?

Would this article and the movie Mr. India act as ‘prior art’ to any future patent applications for the invention of cloaking technology?

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Let us know in the comments.

[1]The Socratic method (also known as method of Elenchus, elenctic method, or Socratic debate), is a form of cooperative argumentative dialogue between individuals, based on asking and answering questions to stimulate critical thinking and to draw out ideas and underlying presuppositions.

[2]Section 10 (3) of the Patents Act 1970, states that if, in any particular case, the Controller considers that an application should be further supplemented by a model or sample of anything illustrating the invention or alleged to constitute an invention, such model or sample as he may require shall be furnished before the application is found in order for grant of a patent, but such model or sample shall not be deemed to form part of the specification.

[3]The Case Of The Speluncean Explorers by Lon L. Fuller, Harvard Law Review Vol. 62, No. 4, February 1949 FOSTER, J. they were, to use the quaint language of nineteenth-century writers, not in a “state of civil society” but in a “state of nature.” This has the consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition.

Author: Mr. Bibhunanda Mishra Editors: Mr. Vivek Verma and Ms. Gunjan Hans Ideator: Mr. Ankit Rastogi Images from the film ‘Mr. India’, Boney Kapoor 1987

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