The rise of brain–computer interfaces marks a technological inflection point, blurring the line between cognition and computation. What happens when thoughts become data, and data becomes patentable subject matter? Soumya Juneja, in her post for the SpicyIP–Jhana Blogpost Writing Competition 2025, engages with these questions and assesses whether there is a need to re-examine invention, prior art, and authorship in the age of neurotechnology. Soumya Juneja is an Associate at an IP law firm and a BBA.LLB. (Hons.) graduate from Jindal Global Law School, with a keen interest in intellectual property, technology, data privacy, and entertainment law.
Thinking Out Loud……Literally: Brains And Boundaries
By Soumya Juneja
The introduction of the brain wave interface has left everyone awestruck yet confused about the possible advancements in technology. Especially, when the use of the same can be exploited or lead to questions we are not prepared to answer. For instance, if such BCIs take thoughts from someone else, does this constitute prior art, and what are the implications that follow? Is neural data processing a mere mental process, or does it involve a technical effect sufficient to cross the patentability threshold? More importantly, who is the author or inventor of such interpreted thoughts? With the onset of a technological revolution, as one may claim, these evolutions are not out of bounds and are very much our new reality.
In this post, I will first discuss the protectability of brain wave technology i.e. Neuralink, along with the concept of mental privacy in neurotechnology. The discussion will ultimately be situated within the statutory standards for protection under the Patent Act, 1970.
Neuralink and Mental Privacy
What is Neuralink?
Coming to an interesting turn of events, Elon Musk has introduced Neuralink, a company that aims to transfigure brain-computer interfaces (BCIs). “There are neurons in the brain that carry information about everything we see, feel, touch, or think”.It is still at a clinical stage, but the company has huge plans for development that go beyond our imagination. The Neuralink chip records and decodes an individual’s neurons. The company hopes to create a direct brain-to-computer interface that will digitalise a person’s thoughts. A lot is unknown in this field, but for now, we know about the existence of such a concept, which might inevitably be a part of our daily lives.
Is this an issue of mental privacy?
The landmark Puttaswamy judgment grants every Indian citizen the ‘right to privacy’ under Article 21. The idea behind the case was not just to prioritize individual autonomy but to safeguard us from upcoming technology and how it can violate our own thoughts. Now, even though Neuralinks are potentially supposed to assist disabled people, can we still refer to the device as an invasion of privacy as the individual is required to give their explicit consent? However, if the Neuralink intervenes more than required, then we may call it brain hacking. “Neuro intrusions” in the upcoming times, will be able to collect our brain waves and will thus, be able to accumulate ones’ thoughts. Several other jurisdictions are considering laws to protect Neuro-rights and have already passed the relevant laws. For instance, Chile provided constitutional protection to its citizens from neuro-rights. Additionally, the United Nations General Assembly stated that “The development and use of neurotechnologies must help to uphold the right of every person to a dignified life. It should be ensured that the benefits of scientific and technological progress serve to respect and protect fundamental rights, such as the rights to identity, autonomy, privacy and the free development of personality”. Moreover, even the European Union is in talks and has even formed a Neurorights Foundation (NRF) in 2017 to discuss such questions.
Patent Law
Patentability in India is established through three core criteria i.e. novelty, inventive step and industrial application. Under Section 2(1)(j) of the Patents Act, an “invention” must be a new product or process involving an inventive step and capable of industrial application. Novelty is determined in light of prior art, meaning that an invention must not have been publicly disclosed anywhere in the world before the priority date. Prior art includes publicly accessible information such as scientific literature, earlier patents, or other disclosures that negate the newness of an invention. Inventive step (Section 2(1)(ja)) ascertains the fact that the said invention is not obvious to a person who is skilled in the art. Lastly, ‘industrial applicability’ (Section 2(1)(ac)), fulfils the idea that the invention must be capable of being used or made in an industry. Now that we have understood the basics of patents, let us understand how prior art and novelty intertwine with BCIs. It is a known fact that ideas are not patentable, and it needs to be an invention to reach the threshold of patentability. However, the technology or processes that go behind BCIs or Neuralink-like decoding systems, neural signal processors, etc may already constitute prior art. This may occur as similar processes have already been utilised in other patents for various neural signal technologies meant for clinical and medical research, and thus would form a part of public knowledge and/or prior art.
How does IP play a role?
Section 3 of the Act lays down exclusions to inventions, which also include “a mathematical or business method or a computer programme per se or algorithms” and a “mere scheme or rule or method of performing a mental act or method of playing game”. In the case of Ferid Allani v. Union of India & Ors., the ‘technical contribution test’ was laid down, which states that for an invention to be patent eligible, its technical contribution should be considered. For instance, in the case of BCIs, the person reading/interpreting brain waves is not really technically contributing to anything unless they take such ideas and convert it into a non-obvious and novel creation. Additionally, if those interpreted thoughts are prior art, then is the patent not eligible for the same? It is pertinent to note that prior art needs to be publicly accessible, but such thoughts cannot be said to be accessible to everyone, but just the person reviewing or studying the neural data to verify the functioning of the brain chip.
If we take everything into account, I suppose this is how the Patents Act can protect a person:
i) If the thoughts are in your brain and nothing is recorded, then naturally no protection is granted as an invention in a tangible form is required;
ii) If the brain chip records such thoughts and intent was involved, then patent protection may play a role if the criterion for patentability is fulfilled
iii) The real issue arises when these thoughts are recorded beyond the required intent. Under these circumstances, the subject can choose to protect such tangible thoughts.
iv) If thoughts are recorded without consent, then it is more than an IP issue and gives rise to human rights violations.
Neuralink almost compels Patent law to confront the blurriness between mental processes and technical systems. As mentioned earlier, this technology interprets everything we see, feel, touch or think. Once these thoughts are recorded and transcribed, then who is the inventor of these tangible thoughts? Invertorship is one of the core concepts of Patents and one cannot violate that. Is the inventor of the company that built neurotechnology? Or is it the inventor who made the coding system that assists BCIs in its functioning? Or lastly, is the subject who is possibly supplying such neural data or brain waves? It may not be right to give inventorship rights to the human subject as technically they are merely providing ‘brain signals’. It is necessary to contribute towards an invention technically as well. However, does the inventor of the code has an onus over all such subjects and their ideas or inventions?
Conclusion
Neuralink compels Patent Law to confront questions that it was never designed to answer. What we have learnt so far is that much is left for debate. Even though privacy is our constitutional right; due to the introduction of Neuralink, the lines may get blurry. The patentability factors have created a clear boundary that the new technology is threatening to shake. As contended above, neural data falls outside the purview of Patent, but intentional, consent-based transcription of thoughts into tangible form may qualify as protectable subject matter. Addressing these challenges will require not only legal reinterpretation but also thoughtful policy reformation attuned to technological realities.