Patents are one of the crucial and most important Intellectual Property Rights for any inventor and business organization. Every inventor wants to protect their invention from infringement and wants to avoid legal troubles. Analysis of the invention for patentability is always advised to be done at earlier stages, this helps in ascertaining the road map of the invention.
In India, one can get a patent for an invention or a research activity and not for discovery. Not every invention will get a patent, The Patent office will grant a patent to inventions which satisfy the Patentability Criteria, I.e. Novelty, Non-obviousness, Industrial applicability and Patentable Subject Matter. Before filing a patent application at Indian Patent Office, an inventor or his attorney performs a patentability search to determine the parameters of patentability.
Every invention has to qualify for all patentability criteria for ascertaining the patentability of any invention. If any invention is not able to qualify for any of the criteria it will be treated as non-patentable subject matter.
The following are the major parameters one must go through before analyzing the patentability of any invention:
- Novelty: Novelty is an absolute novelty which means invention must be new globally and it is not country-specific. As per s. 2(1)(l) of The Indian Patent Act, a “New Invention” is an invention which has not been published in any document (both patent and non-patent document) or disclosed or used anywhere in the world before the date of filing of the patent application.
- Inventive step/ Non-obviousness: As per s. 2(1)(ja) of the Indian Patent Act, an inventive step is a feature of an invention that involves technical advancement 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. The invention is said to be non-obvious if it is not obvious to a person skilled in the art and it involves a distinctive feature or is economically significant with respect to the existing prior art
- Industrial applicability: As per section 2(1)(ac) of the Indian Patent Act, an invention is said to be capable of industrial application if it is made by the industry or used in the industry.
- Patentable Subject Matter: Sections 3 and 4 of the Indian Patents Act describe subject matters excluded from patentability and hence are not considered to be patentable. Thus, inventions which do not fall under sections 3 and 4, are considered to be patentable subject matter (subject to other patentability criteria).
Author: The article is written by Ujjwala Gumble, MSc (Bioinformatics), PGD (Patents Law). She is a Registered Indian Patent Agent with 7+ years of experience in Patentability Search, Patent Drafting, and Patent Filings. She is associated with the company and independent patent practitioner.