What can be Patented in India?

Updated on : 2021-Jan-25 14:21:52 | Author :

an invention relating either to a product or process that is new, involving an inventive step, and capable of industrial application will be patented.

 

Provided the invention is not falling under the categories of inventions that are non-patentable under sections 3 and 4 of the Patent Act. (for details see the section on inventions not patentable )

 

Here is how an invention is outlined within the patent act 1970:

 

Section 2(1)(j) “invention” means a new product or process involving an inventive step and capable of business application;

 

Section 2(1)(a) “inventive step” means a feature of an invention that involves technical advance as compared to the existing data or having economic significance or both and that makes the invention not obvious to a person practiced within the art

 

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

 

Section 2(1)(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or utilized in the country or elsewhere in the world before the date of filing of an application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art;

 

Patentable subject matter

Invention must

 

  • relates to a Process or a Product or both
  • be new (Novel)
  • involves an inventive step
  • be capable of industrial application
  • not fall under Section 3 and 4

Patentability requirements of an invention

  • Newness or novelty
  • Inventive step or non-obviousness requirement
  • Capable of Industrial application
  • Enabling

What we can learn from it:

 

If your innovative idea is a product or a process that has novelty, has an inventive step, and is capable of industrial application then the invention said to be a patentable invention.

 

Now let’s look at each patentability criteria one by one so that we can see if our innovative idea satisfies them and whether we should proceed with a patent application.

 

Newness or novelty requirement

Sections 2(1)(l) and 2(1)(j) of the Patents Act highlight the difference between a new invention and an invention.  A ‘new invention’ is defined as:

 

any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere within the world before the date of filing of a does not with complete specification, i.e., the subject matter has not fallen within the public domain or that it does not type part of the state of the art.

 

An invention is said to be novel if all elements of a claim of the invention aren't anticipated by one prior art that is published or used, or proverbial to the public.

 

Inventive step or non-obviousness 

Now let’s talk about the inventive step, also referred to as the non-obviousness take a look at your innovative idea.

 

An inventive step is said to be present in your invention when it has a technical advance as compared to the existing is a (that may be a state of the art of your field of the invention) or it has economic significance or your invention has each such it makes your invention non-obvious to a person skilled in the art.

 

So, we need to identify a feature of our invention that is either technically advance or it is economically significant or each, when it is compared to state of the art or existing data such that our invention becomes non-obvious to a person skilled within the art.

 

Technical advance means some feature of the invention is having advancement which is technical in nature as compared to the existing knowledge.

 

A person skilled in the art could be a person who has average skills from your domain. for example, if your invention is related to a mechanical device the person skilled within the art would be from mechanical background. If there are multiple technologies utilized in the invention then a person means in the art is assumed to own all the data (that is available and known to the public) from the technologies concerned. this is often to assess the inventiveness of the invention.

 

The idea here is our invention should not be obvious to a person skilled in the art (that is a median person from a background of the field of the invention).

 

In other words, considering the state of the art (things that are already glorious to the public) and assuming the person skilled in the art does not have any knowledge regarding our invention, if that person skilled within the art was asked to solve the matter (that our invention solves), then our invention should not skilled as a natural suggestion by that person virtuoso in the art. which ultimately means that invention should not be obvious. this can be in essence known as the non-obviousness test.

 

And one of the ways to qualify for the non-obviousness test of patentability is proving to the examiner that our invention is solving a long-standing problem in the industry. observing that a long existed for a protracted time and there was a requirement to resolve the problem, also mentioning existing previous arts and patent references WHO tried before but couldn't solve up to a particular extent (stating issues with the previous arts in the background of the invention whereas drafting patent) and since the problem has not resolved till currently it ultimately means that the solution to the matter that's our invention was not obvious.

 

Now, this is not your job as an investor to do all this, in fact, this is the responsibility of a patent agent or patent attorney working on your invention.  an experienced patent professional would be asking you for the required details and technicality of your invention and using such information while drafting patent application for your invention which gives a very good chance for your patent application to stand through the examination stage till the grant of patent.

 

Industrial application or utility

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

 

Industrial application means invention is capable of being made or used in any kind of trade. this is also called quality, a patented invention ought to be able to be created on a large scale that is it could be created, used, and perennial. In general, this patentability requirement of usefulness or industrial application is not a lot of a problem to prove.

 

 

 

Additional Resource​​​​

 

 

 

Get FREE Advice