PATENTABILITY REQUIREMENTS IN INDIA
The Indian Patent Act, 1970 specifies the criteria for determining whether a process or product are patentable or not in India. The law further clarifies that in order to be patented, a new product or process should be novel, involve an inventive step and be capable of industrial application. Knowledgentia Consultants having best patent consultants in India, offers expert advice on what is patentable and what is non patentable even before initiating patenting process. This helps in minimising filing applications for products and processes that do not fulfil the criteria of patentability and thereby saving resources as well as costs.
Patentability of inventions in India depends on fulfilment of certain basic criteria. An invention will be eligible for a patent grant in India only if it meets the patentability requirements. Few requirements for granting patents are listed out below:-
Subject matter of invention-
For patentability, invention must be a product or process or both. It must fall under the definition of things that are patentable. Section 3 & 4 of the Indian Patent Act also mentions about inventions that are not patentable.
- relate to a process or product or both
- involve an inventive step
- capable of industrial application
- must not fall under sections 3 & 4
Non- Patentable Inventions-
- Section 3(a)
- Frivolous inventions
- Invention contrary to well established natural laws
- Section 3(b)
- Commercial exploitation or primary use of inventions, which could be contrary to public order or morality
- Which cause serious prejudice to health, human, animal, plant life or to the environment
- Section 3(c)
- Mere discovery of a scientific principle
- Formulation of an abstract theory
- Discovery of any living thing
- Discovery of non-living thing occurring in nature
- Section 3(d)
- Mere discovery of new form of a known substance which does not result in the enhancement of the known efficacy of that substance.
- Discovery of any new property or new use for a known substance
- Use of a known process, machine or apparatus unless such known process results in a new product or employee at least one new reactant.
- New use for a known substance
- Section 3(e)
- Substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance
- Section 3(f)
- Mere arrangement or re-arrangement or duplication of known devices, each functioning independently of one another in a known way
- Section 3(h)
- Method of agriculture or horticulture
- Section 3(i)
- Any process for medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or a similar treatment of animals to render them free of disease or to increase their economic value or that of their products
- Section 3(j)
- Plants & animals
- Section 3(k)
- Mathematical method, business method, algorithms, computer programme
- Section 3(l)
- Literary, dramatic, musical or artistic work or any other aesthetic creation
- Section 3(m)
- Mere scheme or rule or method of performing mental act or method of playing game
- Section 3(n)
- Presentation of information
- Section 3(o)
- Topography of integrated circuits
- Section 3(p)
- Traditional knowledge or aggregation or duplication of known properties
- Section 4
- Inventions falling within section 20(1) of the atomic energy act,1962 are not patentable
According to Indian Patent Act, invention must be novel. Before applying for a patent, applicants must ensure that their invention are novel. Novelty refers the aspect of newness. The subject matter or the matter of invention should be new to the public. It should not be well known to the public or existing before.
- Inventive step-
Indian Patent Act defines the term inventive step under section 2(1)(ja) as “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.” Lack of inventive step is a valid ground for opposition under sections 25(1)(e) and 25(2)(e), and for revocation under section 64(1)(f) of Indian Patent Act.
As per the definition of inventive step as set out under section 2(1)(ja), a feature of an invention can be considered to posses an inventive step if it meets 2 conditions:
- The feature either adds to existing technical knowledge
- It makes the invention non-obvious to a person skilled in the art
- Industrial Application-
According to section 2(1)(ac) of Indian Patent Act, invention should be capable of being made or used in an industry. If product has at least one use in an industry, it will be considered as industrially applicable. A process must be capable of being used in an industry to satisfy this requirement.
To obtain a patent, the inventor has to file a patent application containing a specification as mentioned under section (10) of Indian Patent Act. Application must include either provisional specification or complete specification about their product or process. It is nothing but the description of the product or the modes of the product. The object of specification is to provide complete information to the public about the invention to define the boundaries. It has to contain a written description of the invention. It also includes process of making and using the invention.
BAJAJ AUTO LTD. VS TVS MOTOR COMPANY LTD. (2008) IILJ 726 MAD
This case involved filing of two suits. One suit was filed by Bajaj Auto Limited claiming injunction from using technology described in the patent and refraining from manufacturing, selling, offering for sale or exporting the product that infringed upon plaintiff’s patent. Another suit was filed by TVS Motor Company claiming injunction restraining defendant from issuing groundless threats and interfering with launch and sale of TVS product. The Madras High Court held that since the improvements were made to patented product so this did not make out any case of infringement.
Patentability requirements are essential as their understanding supports in checking the suitability of an invention for grant of patent so before applying for a patent, applicants must take proper legal advice inorder to ensure that their invention is novel, has inventive step and is capable of industrial application. Knowledgentia Consultants that offers Global IPR protection services is one the best corporate international law firm to assist you in filing as well as getting your patents enforced in India or worldwide. With a team of top most patent consultants in India, we are you one-stop solution for all kinds of legal, compliance and supplemental matters. In case of any query regarding this matter you may email us at firstname.lastname@example.org or visit our website –https://knowledgentia.com/.
PUBLISHED BY MS HARINDER NARVAN, MS. APARNA JAIN, MS. AASHRIKA AHUJA AND MR. PRADEEP KUMAR YADAV ON 29.01.2022