The Indian Legal Challenges of Brain-Computer Interface Patents and Data Privacy

Brain-Computer Interface(BCI) is a revolutionary concept which aids the people in numerous ways and the aid is beyond the wordy comprehension and building a BCI requires a lot investment and the Return of Investment for building a BCI can only be cultivated by patenting the BCI. However, the Patent Act, 1970 imposes the double-dead lock towards the patenting a BCI, through section 3(k) and 3(i) and it has regulatory restriction from other laws also. This blog explore the Legal paradox of the Brain-Computer Interface.

In India the patents are governed by the Indian Patent Act, 1970, and all the patent applications should be submitted to the Indian patent office for the grant of the patent to the particular invention.^[1] In the Indian context the invention should be novel, have innovative steps and should have industrial application for granting the patent.^[2] Most of the Brain-Computer Interface (BCI) invention patents will clear the basic requirements, but section 3 of the Patent Act, 1970, almost gives a checkmate to the invention, as in accordance with section 3(k), the computer program per se is not patentable. This poses the greatest threat to the patent of BCI, along with 3(i), which makes the medical treatments not patentable.^[3]  

However, the word 'per se' is specifically inserted by the amendment bill^[4] to align the Indian patent system with the TRIPS agreements,^[5] which means that the whole computer program in itself cannot be considered a patentable invention, albeit the invention related to the computer software which is not a program shall be patented.^[6]BCI software with a technical application and practical applicability makes the BCI patentable in the Indian patent regime.

USPTO granted a patent for the digital vaccine which is created and tested in a metaverse game^[7] which takes on the challenges of section 3(i) and establishes that the invention which is tested in the metaverse and patented was granted to an electrocorticography-based brain computer interface (US 7,120,486 B2) by the USPTO.^[8] From this it can be interpreted that the BCI invention in the metaverse can be patented.

[Image Sources: Shutterstock]

The hardware, such as the EEG headsets, is easily patentable, but the software patent is often hard to patent, as the evolved software uses machine learning assisted by AI. Thaler v. Commissioner of Patents (2021),^[9] questioned the AI’s role in the inventorship that is a growing trend in BCI inventions^[10]. and Europe has some more rigid standards for those patent applications than the US. BCI is majorly applied in healthcare, especially for the disabled people, and most importantly, it helps them create art. Now it raises the issue of who owns the copyright of art produced by the artist with the help of the BCI.^[11] Most of the BCI is empowered with artificial intelligence, and it adds more crumbs to the IP issues relating to IP, but it has been clarified in 2023 by the Thaler v. Comptroller General of Patents, Trademarks, and Designs^[12] judgement, and it established that the AI can never be an inventor under the patent act and further held that AI is not a legal person.^[13] The process of BCI is that it acquires the neural activity and records the communication of neurons with each other.

The neuron signal will be recorded by the BCI and will be converted into processed digital signals. Subsequently, those signals will be analysed, and the analysed data will direct the connection for the intended action.^[14] 

BCI basically processes the neural data, which will have serious privacy issues as it unintentionally collects the neural data, such as emotions, intentions and thoughts, and there is an underlying chance of misuse of the same neural data.^[15] The neural data is the personal data, and all the data protection legislation mostly governs the protection of personal data. For instance, the EU has GDPR, which is the legislation that governs the processing of personal data, and the Digital Personal Data Protection Act governs the processing of personal data in India, but the current legal framework doesn’t have any specific provision to govern the neural data,^[16] and in India the right to privacy was included in the ambit of Article 21, which is the right to health, by the landmark case of K.S. Puttaswamy v. Union of India.

^[17] BCI cannot be restricted to the legal challenges, and it has some ethical challenges too, but the Digital Personal Data Protection Act, 2023, has failed to recognise the neural data processed by the BCI, and all the medical devices in India are regulated by the legal framework called Medical Rules, 2017, under the Drugs and Cosmetics Act, 1940.

Considering BCI has medical devices, the act also fails to address the BCI, albeit countries such as the US’s FDA (Food and Drug Administration) encourage the BCI patent, and the UK recognises the BCI as a medical device and categorises it as a high-risk medical device.^[18] 

Privacy Issues:

Privacy is an inherent part of Article 21.^[19] The personal data must be secured with utmost care, recognising the importance of the data privacy. All the technologically advanced countries started to frame the laws regarding data privacy, pursuant to that, India has the DPDP Act, which governs and regulates the processing of digital personal data,^[20] and the General Data Protection Regulation (GDPR) is applied for all of Europe. In the instance of Brain Computer Interface, it collects the neural data,^[21] which is the data of individual autonomy, and it is also considered personal data, and all BCI data is registered on a computer to enhance the user experience, which is engraved in the metaverse, which raises more privacy concerns over the personal data. The brain-computer interface captures neural signal to process the information and that information is fed to machine learning models for completing that particular task which assigned to that BCI effectively and that information may include “emotions, beliefs, social beliefs, sexual preferences, political references and some specific data related to the application” of that particular BCI,^[22] and those data may increase in volume, which is directly proportional to the expansion of the market^[23] and There are allegations that these BCIs can use the neural data to maximise their profit by selling them like target advertising,^[24] and  governments can obtain the neural data for law enforcement,^[25] and this neural data are prone to cyberattacks such as hacks.^[26] The significant application of the BCI is the medical application, and there exists the possibility of a cyberattack on the neuromedical application, particularly in the prosthetic limb, as the whole BCI is achievable through the connection of an external device and the human brain. Once it's implanted, the complete raw EEG data is linked between the patient and the doctor, this connection can be intercepted by the attacker despite the encryption and is vulnerable to being misused by the attacker.

^[27] However, whether all the neural data should fall under GDPR is a prevailing question, as the majority of the BCI researchers classify the neural data as medical data and not fully fledged personal data.^[28] The Bluetooth-enabled BCI tracks the location of the user, which poses a greater risk of privacy^[29].  The unauthorised use of personal data, which includes the location, by any legitimate means violates the fundamental right,^[30] and all the data which has been collected by the BCI is personal data of the user.

The violation of privacy would automatically amount to the violation of a fundamental right, which is against the constitution. Any invention which violates the fundamental right is not patentable under Section 3(a) and (b) of The Patent Act, 1970.

Conclusion

A patent is an exclusive right granted for an invention, it gives the inventor the legal protection of the invention and a limited monopoly over the monetisation of the invention,^[31] which brings the pertinent question of whether the lifesaving BCI should be monopolised even for a short term.^[32] The technological advancements of the human race are at exponential speed, and the major setbacks for any invention and innovation of this era of advancements are investments, primarily money. Patents are the only key to overcoming this ultimate barrier. Albeit, India’s patent laws were restrictive of the invention that could revolutionise the world, which is the brain-computer interface.

Brain-Computer Interface is the way to the future, and India exceptionally lacks the laws and primarily restricts the patentability of the Brain-Computer Interface. This restriction not only affects the invention, it affects the total psychology of the inventors and the investors, which curbs further inventions and innovations and the revenue from those inventions to the country.

Author: Cheran. S, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

^[1]Frequently Asked Questions – Patents (Intellectual Property India, 2024) <https://ipindia.gov.in/writereaddata/portal/images/pdf/final_frequently_asked_questions_-patent.pdf> accessed 11 November 2025

^[2]Apply for Patent in India, Razorpay (2025) <https://razorpay.com/learn/apply-for-patent-in-india/#What-Inventions-are-Patentable> accessed 11 November 2025

^[3] Biomedical Patent of Brain–Computer Interface: Navigating India’s IP Protection Framework (Global Patent Filing, 2024) <https://www.globalpatentfiling.com/blog/Biomedical-Patent-of-Brain-Computer-Interface-Navigating-India-s-Ip-Protection-Framework> accessed 11 November 2025

^[4] Report of the Joint Committee on the Patents (Amendment) Bill, 2001 (Ministry of Commerce & Industry, India, 19 December 2001) <https://spicyip.com/wp-content/uploads/2020/02/Patents-Act-REPORT-OF-THE-JOINT-COMMITTEE-19-Dec-2001.pdf> accessed 11 November 2025

^[5] N.S. Gopalakrishnan, ‘The Patents (Second Amendment) Bill, 1999 – An Analysis’ (2001) 1 SCC (Jour) 14 <https://www.ebc-india.com/lawyer/articles/2001v1a2.htm> accessed 11 November 2025

^[6] Mayank Tyagi, ‘Patent Eligibility of IoT Inventions Under the Indian Patent Act: A Legal Analysis’ (2021) 6 UPES L Rev 114.

^[7] Rupali Mukherjee and TNN, ‘Indian Gets World’s First Digital Vaccine Patent’ (Times of India, 8 June 2022) <https://timesofindia.indiatimes.com/business/startups/trend-tracking/indian-gets-worlds-first-digital-vaccine-patent/articleshow/92073578.cms> accessed 11 November 2025

^[8]US Patent 7,120,486 B2 (filed 17 Jun 2002, issued 10 Oct 2006) <https://patentimages.storage.googleapis.com/37/80/d4/06657e4acdbbbd/US7120486.pdf> accessed 11 November 2025

^[9] Thaler v Commissioner of Patents [2021] FCA 879 (30 July 2021) <https://haugpartners.com/wp-content/uploads/2021/12/Australia-Thaler-v-Commissioner-2021-FCA-879.pdf> accessed 11 November 2025

^[10] Dr Anil S M and Dr N Vani Shree, 'Navigating Intellectual Property in Brain-Computer Interfacing Technology Systems' (2024) 10(2) JSS Journal for Legal Studies and Research 117 <https://jsslawcollege.in/wp-content/uploads/2024/11/7.-Navigating-Intellectual-Property-in-Brain-Computer-Interfacing-Technology-Systems-Fn.pdf> accessed 11 November 2025

^[11] Ibid

^[12] Thaler v Comptroller General of Patents Trade Marks and Designs [2023] UKSC 49

^[13] Supreme Court confirms AI cannot be an inventor under the Patents Act (Womble Bond Dickinson, 16 May 2024) <https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/supreme-court-confirms-ai-cannot-be-inventor-under-patents-act> accessed 11 November 2025

^[14] Dimitrios Angelakis, Evangelos Ventouras, Spyridon Kostopoulos and Panagiotis Asvestas, ‘Cybersecurity Issues in Brain-Computer Interfaces: Analysis of Existing Bluetooth Vulnerabilities’ (2024) 3(2) Digital Technologies Research and Applications 92 <https://doi.org/10.54963/dtra.v3i2.286> accessed 11 November 2025

^[15] Jennifer Dickey, ‘Navigating the Legal and Ethical Landscape of Brain-Computer Interfaces: Insights from Colorado and Minnesota’ (IAPP, 11 June 2024) <https://iapp.org/news/a/navigating-the-legal-and-ethical-landscape-of-brain-computer-interfaces-insights-from-colorado-and-minnesota> accessed 11 November 2025

^[16] Brain–Computer Interfaces: Mental Privacy, Data Ownership and the Dawn of Neuro-Rights (JusCorpus) <https://www.juscorpus.com/brain-computer-interfaces-mental-privacy-data-ownership-and-the-dawn-of-neuro-rights/> accessed 11 November 2025

^[17] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.

^[18] Pratiksh Sharma, ‘Biomedical Patent of Brain-Computer Interface: Navigating India’s IP Protection Framework’ (2025) <https://www.researchgate.net/publication/393471693_Biomedical_Patent_of_Brain-Computer_Interface_Navigating_India%27s_IP_Protection_Framework> accessed 11 November 2025

^[19] Puttaswamy (n 17)

^[20] Digital Personal Data Protection Act 2023, Act No. 22 of 2023 (India) <https://www.meity.gov.in/static/uploads/2024/06/2bf1f0e9f04e6fb4f8fef35e82c42aa5.pdf> accessed 11 November 2025

^[21] Naufel S and Klein E, ‘Brain-computer interface (BCI) researcher perspectives on neural data ownership and privacy’ (2020) 17(1) Journal of Neural Engineering 016039 <https://doi.org/10.1088/1741-2552/ab5b7f> accessed 11 November 2025

^[22] Anisha Agarwal et al, ‘Protecting Privacy of Users in Brain-Computer Interface Applications’ (arXiv, 2 July 2019) <https://doi.org/10.48550/arXiv.1907.01586> accessed 11 November 2025

^[23] Alessandro Dato, Brain–Computer Interface: A Data Protection Perspective (Master’s thesis, Tilburg University 2019) <https://arno.uvt.nl/show.cgi?fid=146398> accessed 11 November 2025

^[24] Marcello Ienca, Pim Haselager and Ezekiel Emanuel, ‘Brain Leaks and Consumer Neurotechnology’ (2018) 36 Nature Biotechnology 805 <https://doi.org/10.1038/nbt.4240> accessed 11 November 2025

^[25] Ibid

^[26] Angelakis and Ventouras (n 14)

^[27] Kaushik Sundararajan, Privacy and Security Issues in Brain–Computer Interface (Master’s thesis, Auckland University of Technology 2017) <https://openrepository.aut.ac.nz/server/api/core/bitstreams/f6edfe94-1b2f-4cbc-aeea-49f917709734/content> accessed 11 November 2025

^[28] Naufel and Klein (n 21)

^[29] Angelakis and Ventouras (n 14)

^[30] Aditya Sarmah, ‘Privacy and the Right Against Self-Incrimination: Theorising a Criminal Process in the Context of Personal Gadgets’ (2017) 3(II) CALQ (‘Capital Law Quarterly’) <https://docs.manupatra.in/newsline/articles/Upload/E978E05B-6194-4CB1-A7FC-C0E30B6FC7EC.pdf> accessed 11 November 2025

^[31] Sven Bostyn and Nicolas Petit, Patent = Monopoly – A Legal Fiction (4iP Council, December 2013) <https://4ipcouncil.com/application/files/4314/2729/2678/Patent_Monopoly_-_Legal_Fiction_-_Bostyn_and_Petit_-_4iPcouncil.pdf> accessed 11 November 2025

^[32] Sharma (n 18)