Understanding Patentability in India: A Comprehensive Guide
New items or techniques with an innovative step and an industrial application are considered patentable in India. They cannot belong to any of the non-patentable groups specified in the Patent Act's sections 3 and 4. Frivolous or against natural law inventions, damaging or immoral inventions, scientific principle discoveries, and others are not eligible for patent protection. Additionally not eligible for patent protection are inventions pertaining to atomic energy.
According to the Patent Act of 1970, India's patentable subject matter
A technique, product, or both must be the subject of an invention; it must also be new (novel); it must entail an innovative step; it must be practical for industrial use; and it cannot fall under Sections 3 or 4. It means your creative concept is considered patentable if it is a new product or method with an inventive step that can be used in the industrial world.
originality or freshness prerequisite
The Patents Act's Sections 2(1)(l) and 2(1)(j) explain the distinction between an invention and a new invention. Any technology or invention that has not been published in any document or used domestically or internationally prior to the filing date of a patent application with full specification is considered a "new invention"; that is, its subject matter has not entered the public domain or is not considered to be part of the state of the art.
If every component of an invention's claim has not been predicted by any published, used, or publicly available prior art, then the invention is considered new.
Novel approach or lack of obviousness
When an invention has a technical advance over what is currently known (i.e., the state of the art in the field in which it is used), when it has economic significance, or when it combines both, it is considered to have an inventive step when it prevents a person skilled in the art from seeing it coming.
Therefore, in order to make our invention appear non-obvious to a person versed in the art, we must select a feature that, when compared to the state of the art or existing knowledge, is either technically advanced, commercially significant, or both. Technical advance refers to a feature of the invention that has been made in a way that is more advanced than what is currently known.
Few methods to reach the innovative step
Among the methods used to reach the inventive step are: • Inventions include resolving a long-standing technical issue that previous arts have attempted but failed to resolve.
- When an invention demonstrates an unanticipated technical result of a novel combination of well-known components
- The degree of difficulty for an individual to mix previously recognized arts to find a solution, etc.
- When assessing inventive steps, the "problem/solution" technique is typically employed. This involves determining whether the answer provided in the patent application is evident to a person with reasonable ability in the relevant field.
Now, as an inventor, you are not responsible for doing any of this; rather, a patent agent working on your idea is. A skilled patent professional would ask you for the necessary information about the specifics and technical aspects of your invention. Using this information, they would draft a patent application for you, increasing the likelihood that it would pass the examination phase and be granted.
The term "capable of industrial application" in the definition indicates that something need not be mass-produced at this time, but it does have the potential to be used in industry in the future. Proving the necessity of usefulness or industrial use for patentability is often not too difficult.
In India, who can file for a patent?
Any of the following people, acting alone or in conjunction with another person, may file a patent application for an invention:
- The true and first inventor; • The assignee of the true and first inventor; • The executor or executors of the true and first inventor who have passed away.
What Cannot Be Patented in India?
- inventions covered by the Patents Act of 1970, Section 3.
- Stocks covered under Section (1) of Subsection 20 of the Atomic Energy Act of 1962
The following, according to Section 3 of the Patent Act, are not innovations.
(a) a frivolous innovation or one that makes claims that are blatantly at odds with established natural laws;
(b) an innovation that poses a substantial risk to the health, safety, or environment of people, animals, plants, or both, or whose primary or intended use or commercial exploitation could be harmful to public order or morality;
(c) the simple act of discovering a scientific concept, developing an abstract theory, or finding any living organism or non-living material in the natural world;
(d) the simple act of discovering a novel form for a substance that does not lead to an improvement in the substance's known efficacy; the simple act of discovering a novel property or application for a substance; or the simple act of utilizing a machine, apparatus, or process that is already known and does not produce a new product or at least one new reactant.
(e) a substance that is made by mixing known substances in a way that only causes the properties of the parts to come together; (f) the simple arrangement, rearranging, or replication of known devices that work separately from each other in a known way;
(g)(omitted)
(h) a technique for farming or horticulture; (i) any procedure for treating people medically, surgically, curatively, prophylactically, diagnostically, therapeutically, or in any other way; or (ii) any procedure for treating animals in a similar manner to make them disease-free or to raise the value of the animals or the products they produce.
(j) complete plants and animals, or any portion of them, excluding microorganisms, but encompassing species, seeds, varieties, and other biological processes that are fundamental to the growth or reproduction of plants and animals;
(k) an algorithm, a computer program in general, a mathematical technique, or a business strategy;
(l) a work of literature, drama, music, or other creative arts; this includes any kind of cinematic or television production;
(m) a simple plan, guideline, technique for carrying out a mental act, or approach to playing a game;
(n) an informational presentation;
(o) the topology of integrated circuits; (p) an invention that, when combined with previously known features of a component or components, effectively amounts to conventional knowledge.
Some examples of intellectual property include a new drug that treats a specific medical condition, a computer program that improves data analysis, a novel that tells a unique story, and a game that introduces innovative gameplay mechanics. Intellectual property can also encompass the design and layout of integrated circuits, as well as presentations that convey valuable information in a creative and engaging manner. Additionally, intellectual property can involve inventions that combine existing components in a novel way, resulting in improved functionality or efficiency.
As a global leader in patents and IPR, Einfolge can help clients protect and monetize their intellectual property assets. With a team of experienced professionals, Einfolge offers comprehensive services such as patent drafting, patent search and analysis, trademark registration, and copyright protection. By leveraging their expertise in various industries, Einfolge assists clients in navigating the complex landscape of intellectual property laws and regulations to ensure maximum protection for their innovations. Whether it's conducting prior art searches or providing infringement analysis, Einfolge's tailored solutions help clients make informed decisions about their intellectual property strategies.