What is Patent?
According to WIPO “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application. To grant a patent is to grant some privilege or some substantive rights to the inventor, it secures him the monetary right which he can enforce for his advantage either by using itself or by granting the privileges to others.
The journey of Patent in India
Patent Act was enacted in India in 1911 and since then there have been substantial changes both in the country and the Patent Act. The need for a more effective patent right was felt as early as in 1948, a committee “Patent Enquiry Committee” was appointed by the government to review the needs and growth of the patent laws in India. In 1953 the patent bill was passed which was based on the United Kingdom Patent Act 1949; however, the bill lapsed on the dissolution of first Lok Sabha.
The government of India appointed Justice N.Rajagopala Ayyangar to examine and review the Patent Act in the year 1957. A detailed report was formed and submitted by the committee in September 1959. The bill was introduced in 1965 having reference mainly to food, drugs, and medicines. Nevertheless, the bill failed to proceed and was eventually dissolved.
The patent bill having been passed by both the houses of parliament received the assent of the President on 19th September 1970.
Principle Underlying The Patent Act
To be patentable invention must be a new product or process moreover it should be useful and capable of industrial applications. A patent can only be granted if there is a significant amount of technological advancement as compared to the existing knowledge. The expression ‘capable of industrial application’ has been defined under Section 2(1)(ac). Hence to get an invention patentable it must:
1) It must be new
2) It must involve innovative steps
3) It must be capable of industrial applications
4) It must not fall under the subject category that has been excluded or made subject to exception.
Newness –
Novelty or newness is an important element in an invention. There would be no novelty if there are prior publications and prior use of the invention. In other words, the newness of any invention depends upon its prior art. For instance, granting a patent in the USA for turmeric products was challenged on this ground. According to the CSIR, the granting of the patent was not valid as there was no novelty or newness, the healing properties of turmeric are already published in ancient texts, and uses of turmeric has been in the country for immemorial times, hence the claim of a patent does not arise.
For patent, the invention must be new.
Usefulness-
An innovation that cannot be exploited commercially or for the benefit of the public is of least use. Anything which does not benefit mankind cannot be patented.
NON OBVIOUSNESS- The dictionary meaning of the word ‘non-obvious’ is not easily discovered hence, to put together nonobvious as a patent term means that the invention shall not be obvious or apparent to a person ordinary skilled in the field relating to the invention. In other words, the invention shall contain an inventive step over the prior art. It should not be mere a workshop improvement or general re-arrangement of components/features of the invention.
This test of non-obviousness is to be made with the perspective of a person having ordinary skill in the art i.e. having average skills, and not an expert in that technology. The test is very essential and subjective too while deciding the inventive step the adjudicator needs to assess the “inventive step” on the scale and parameters of a person ordinarily skilled in that art.
In Asian Electronics Ltd. Vs. Havells India Limited[1] The Delhi High Court looked into the basic criteria of patentability, particularly “non-obviousness” or “Inventive-step” in a Patent.
Inventions Which Are Not Patentable
Section 3 and 4[2] lists the inventions within the meaning of this act that are barred from being patentable. The question of whether there is an invention is a question of fact in each case. What is always protected is the result of an invention.
- A frivolous invention or the one differing to established natural laws is not patentable. Let’s say someone makes a device that could hack into any server and can copy any private information, disturbing public order and morality. An invention whose commercial exploitation is opposing to public order and ethics or which causes serious intolerance to human, animal, plant, or the environment is not patentable. Therefore, if someone develops a device for housebreaking or a gambling machine, the same cannot be granted a patent. An application that helps one hacking to email accounts of others can also not be patented.
- The 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 is not patentable. This means the discovery of an existing principle like natural minerals, ores, cannot be patented. The patent can only be granted if it fulfills the criteria of newness, however mere discovery of any product cannot be patented. While discovery adds to the knowledge to the human mind it only lifts the veil and discloses the unseen or dimly seen product.
Lallubhai Chakubhai Vs Chimanlal Chunilal and Co.[3]
- The sheer discovery of any new form of a known substance that does not result in the enhancement or increase in efficiency of that substance or discovery of any new property or finding new uses for that known substance will not be considered patentable. The crystalline forms of a substance already known cannot be filed for a patent grant under this exclusion. New uses of the plant neem cannot be patented as per this clause. However, salts, esters, ethers, polymorphs, metabolites, pure forms, particle size, isomers, complexes, combinations, and derivatives of a known substance with enhanced efficacy are patentable. Improvement of a manner of manufacturing means any useful modification of an already known manner of manufacturing an article.
Novartis Ag v. Union of India
- The Supreme Court of India said that “mere discovery of an existing substance would not amount to the invention”. The Supreme Court of India held, in this case, that for pharmaceutical patents apart from tests of novelty, inventive step, and application, there is a new test of enhanced therapeutic efficacy that claims to cover incremental changes than existing drugs. This was also not present in Novartis’s drug did not qualify”.
- Duplication of known devices, each of which can function independently in a known way is excluded under clause (f). Thus, a clock and a phone attached in a single closed cabinet cannot be patented as they work autonomously of each other. But, if such an arrangement makes any difference, then it is patentable.
- A technique of agriculture or floriculture, for example, a new type of soil or an original process of cultivating wheat, cannot be patented. On the other hand, this clause does not exclude filing for a patent of a new, better working agricultural equipment. This is done to prevent monopoly development and exploitation of the public.
- Any process for the medical, surgical, curative, therapeutic or other treatment of human beings or any process for a similar treatment of animals to increase their economic value or that of their product and to render them free of disease for an example process of carrying out a surgery or blood transfusion is not patentable. It is vital to note that processes, in this case, are not considered inventions. Though, systems and apparatuses are still regarded as patentable subject matter.
- Animal and plant in parts or completely thereof other than micro-organisms but together with seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals is an exclusion under clause (j). Clones of animals and new varieties of plants that are a process for the production of plants or animals if it consists completely of natural phenomena such as crossing or selection, virtually biological process, etc.
- A mathematical method or business method or algorithms or computer program cannot be patented under clause (k). A computer program code can be given protection under the Copyrights Act as a “literary work” but is not patentable under the patent act. On the other hand, any new calculating machine or combination of hardware and software that increases efficiency is patentable.
- A mythical, dramatic, melodious, or artistic work or any other aesthetic creation whatsoever, including cinematographic works and television productions, comes under the Copyrights Act protection and therefore is left out of the purview of Patents Act. A plain scheme or some rule or any method of performing a mental act or method of playing games. For example method of learning a language, or solving a crossword puzzle, etc., is excluded from the Patent Law application. Presentation of information in any manner or method by spoken words, visual display, diagrams, or symbols is not covered under the Patent Act.
- Presentation of any information in such a manner or method either by spoken words, visual display, diagrams, or symbols is not covered under the Patent Act. The topography of incorporated circuits is also not patentable.
[1] I.A. No. 8205/2009 in CS(OS) 1168/2009
[2] Patent Act 1970
[3] AIR1936 BOM 99:ILR60 BOM261
About Author – This article has been written by Ayush Rastogi, He is a bibliophile and likes to explore and challenge various cultures prevailing throughout the world. He believes that constant change is a must, adopting new laws and rewriting old ones is a necessary act. The author is a budding lawyer with good research skills and subtle writing skills. Ascending the knowledge of the law.
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