what are patentable inventions in India


what are patentable inventions in India

what are patentable inventions in India

patentable inventions in India

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

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

Here is how an invention is defined in patent act 1970:

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

Section 2(1)(ja) "inventive step" means 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

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 used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in 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 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 which 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 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 in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.

An invention is said to be novel if all elements of a claim of the invention are not anticipated by a single prior art which is published, or used or known to public.

Refer our section on “working with patent agent or attorney” on patent drafting for understanding importance of claim and the role they play in patent.

 

inventive step or non obviousness 

 

Now let’s talk about inventive step, also known as non obviousness test for 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 knowledge (that is state of the art of your field of invention) or it has economic significance or you invention has both such that it makes your invention non-obvious to a person skilled in the art.

 

So, we need to identify feature of our invention that is either technically advance or it is economically significant or both, when it is compared to state of the art or existing knowledge such that our invention becomes non-obvious to a person skilled in 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 is a person who has average skills from your domain. For example if your invention is related to mechanical device the person skilled in the art would be from mechanical background. If there are multiple technologies used in the invention then a person skilled in the art is assumed to have all the knowledge (that is available and known to public) from the technologies involved. This is 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 an average person from a background of field of invention).

 

In other words, considering the state of the art (things already known to public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then the our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as non obviousness test.

 

And one of the way to qualify for the non obviousness test of patentability is mentioning and proving to examiner that our invention is solving a the long standing problem in the industry. Pointing out that the problem existed for long time and there was a need to solve the problem, also mentioning existing prior arts and patent references who tried before but could not solve up to certain extent   (stating problems with the prior arts  in the background of the invention while drafting patent) and since the problem has not solved till now it ultimately means the solution to the problem that is our invention was Not obvious.

 

Now, this is not your job as an inventor to do all this, in fact this is responsibility of a patent agent or patent attorney working on your invention.  an experienced patent professional would be asking you for 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 examination stage till the grant of patent.

 

This is explained in detail in section “preparing patent application (patent drafting)” under chapter number 3. “working with patent agent or attorney”

 

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 industry. This is also known as usefulness, a patented invention should be able to be produced on a large scale that is it could be created, used and repeated.

 

Now if you observe the word in definition is Capable of industrial application, which means it need not be mass produced right now, but has capability of industrial application in future.  In general this patentability requirement of usefulness or industrial application is not much of a problem to prove.

 

Who can apply for patent in India?

An application for a Patent for an invention may be made by any of the following persons either alone or jointly with any other person:

  • True and first inventor
  • True and first inventor‘s assignee
  • Legal representative of deceased true and first inventor or his/her assignee

About 

Registered Patent Agent India (IN/PA 2352) with bachelors degree in electronics and telecommunication engineering. Working in patents and IPR field since 12+ years. associated with leading Intellectual Property firms in India Successfully helping inventors and businesses in securing their Intellectual Property Rights (IPR) including Patents, Trademarks, Designs & Copyrights along with Contract & Commercial Matters.