What is a Patent? And how does it protect your rights? In this article, we set out the basic meaning of patent under Indian Law, and the essential facets and advantages of having a patent for your invention.
A patent is derived from the Latin word “Patere”, which means “to lay open” (to make it available for public inspection). In this sense, a Patent is a legal document which is granted by the government to the inventor for a limited period for the invention that they have created. Such a protection confers exclusive monopoly rights to the patent holder to solely exploit the invention by making, selling, licensing and using the invention and deriving maximum benefit out of it during the exclusivity period. Thus, a Patent is an incentive to the invention which in turn encourages innovations globally.
The purpose of the patent is to protect the exclusive rights of a patent holder for a specified period of time from individual imitators and independent developers who have similar ideas about the same invention. It helps the national economy to grow and promotes healthy competition by encouraging an environment of research and development which in turn will increase global investments towards experimentation.
Do you know India has the highest standards in the world when it comes to the grant of patents!
This possibly stems from the fact that, ancient Indian jurisprudence did not recognize monopolistic rights over technologies. Each profession was caste based and everything was a trade secret among the cast members. The first Indian legislation for Patent and Design was enacted in 1911 and under it, novelty to Indian Territory was enough for the grant of patents. Later on, after independence two committees were constituted that looked into the formation of a patent law for India and ultimately resulted in the passing of the Indian Patent Act, 1970. So far this Patent Act has been amended 3 times in 1999, 2002 and 2005. Presently, The Patents Act, 1970 lays down the guidelines under which a patent protection is granted for 20 years.
What can be patented in India?
To comprehend what all can be patented in India, one needs to go through the subject-matters that can be patented and since not all subject-matters come under the umbrella of patent protection, hence it is important to appreciate the meaning of the word “Invention” as set out in the Indian Patent Act, 1970.
S 2(j) of the Indian Patent Act, 1970 defines an invention as follows:
Invention means a new product or process involving an inventive step and capable of industrial application.
The soul to the word ‘Invention’ was given after the advent of TRIPS in 1995. The TRIPS Agreement (Trade Related Intellectual Property Agreement) is an International set of rules governing IP laws around the world, which lays down the minimum framework which all nations need to incorporate within their domestic laws and hence the above definition was implemented via the Patents (Amendment) Act 2002, incorporating the “inventive step” as one of the criteria of patentability.
The above definition acknowledges patent protection for both product (the end product article) and process (the process through which end product is obtained) and specifically ignores the “discoveries” aspect. This also signifies that a patent cannot be granted to an invention that has been achieved through reverse engineering.
On further splitting the definition, it can be inferred that for patentability an invention has to be
The novel should have an inventive Step (Non-Obvious), and capability of industrial Application
When it comes to an invention, novelty is the core concept. Novelty means ‘newness’ when compared to what is already existing i.e. prior art. If the invention that seeks patent protection is already existing in the public domain, in that scenario, there is no newness, hence no protection.
According to 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.
Therefore, an invention should not exist in public, when one goes to file the application for a patent.
In fact, under the grounds for revocation under section 64 of the Patent Act, 1970, the absence of novelty is a very important ground.
Further, a patent can also be granted for an improvement or modification to an invention which already exists. An improvement or a modification is not included in the definition of the invention but if the modification or the improvement is new, useful and shows greater performance then it can be patented provided it satisfies the test of patentability.
While determining the patentability of an improvement points such as superior utility, comparative excellence, efficient production and qualitative improvement of the product shall be taken into consideration. It is expected that the patentee while giving the specifications of the improvement, will show distinguishing features from the existing knowledge.
Another aspect attached to the patentability is, an invention needs to be is of non-obvious nature. It is imperative that any person who is considered to have skills in that very field should not be able to anticipate the invention. The novelty and the non-obvious nature of the invention should go hand to hand. For instance, if you were the first person to make a rocking chair having a wooden base and later on, someone comes up with a metallic base chair, in such scenario, there is newness attached to the invention but the non-obviousness is missing.
Now, for the invention to get a patent protection there is a need for an inventive step.
Under section 2 (ja):
inventive step means a feature of an invention that involves technical advance as compared to existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
Thus, a particular inventive step in the invention shall cater to a technical advancement not previously known and along with that, there has to be an economic value attached to it. This economic value is acquired when that invention is industrially applied.
According to Section 2 (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.
A point of judicial examination can also be in interpreting the words “capable of industrial application”, as it is important for an invention to be economically useful and that, can be achieved when it is industrially applied. The word ‘industry’ should be taken in widest intellect so that it includes distinctive activities and not get limited to machinery work.
What cannot be patented in India?
After understanding the main prerequisites of Novelty, Non-Obviousness, Inventive Step and Industrial Application, it is important to go through a list of what cannot be the subject matter of patentability as mentioned in section 3 and 4, The Indian Patent Act, 1970. The list of the relevant sections is free from monopoly rights, excluded by policy and may be protected by other IP laws.
The following are not inventions within the meaning of the Act and hence cannot be patented as per the Indian laws:
- an invention which is frivolous or claims anything contrary to natural laws;
- using or commercially exploiting an invention which is contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
- the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
- a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- method of agriculture or horticulture;
- process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings and of animals.
- plants and animals in whole or any part including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- a mathematical or business method or a computer programme per se or algorithms;
- a literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic works and television productions;
- a mere scheme or rule or method of performing mental act or method of playing a game;
- a presentation of information;
- the topography of integrated circuits;
- traditional knowledge
- Inventions relating to atomic energy.
An invention can be as complicated as the process of building a spaceship or as simple as a hairpin, all one needs is the right direction to proceed in to protect it. To get a patent first you need an invention and then, one needs to comply with the requirements for patenting that invention. Requirements include:
- Newness attached to that invention (for instance, an idea to simplify a prevalent problem or a totally new process to achieve a product etc.);
- Inventive step in that invention, that signifies non-obviousness to the person who is skilled in that area;
- Industrial application of that invention for monopoly exclusive rights.
 TRIPs agreement, Article 27.1 (providing that, subject to certain exceptions, “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”)
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