Patent Law in India
Mahesh Babu is a scientist. He has come up with an invention for which he wishes to file a patent in India.
Over the next few posts, we will discuss the process of obtaining patent protection in India and help Mr. Mahesh Babu in protecting his invention and file an Indian patent. Today, we will see what does a patent protect i.e. what is the subject matter of a patent?
Subject matter of a patent:
The inventor of any invention always seeks patent protection for his invention. Patent protection protects his/her invention from unauthorized use and also gives a monopoly to the creator to exploit his invention and derive maximum benefit from it.
Patent protection is granted under the “Indian Patent Act” and this protection subsists for a period of 20 years. However, not all creations or inventions would warrant patent protection. The Indian Patent law lays down certain requisites for the filing of an Indian patent. In order to understand these requisites, it is essential to understand as to what amounts to be an invention.
Inventions under the Indian Patent Act:
Now, S 2(j) of the India Patent Act 1970 defines an invention as follows:
‘invention means a new product or process involving an inventive step and capable of industrial application.’
Simply put, any product or process will be deemed to be an invention if it is novel, non-obvious, involves an inventive step and has industrial application. An invention should be novel, this means that such an invention should not have existed previously.
Next, the invention should be non-obvious implies that any person skilled in that field should not have anticipated the invention. Consider the invention of a chair with wheels. Any person skilled in the art of carpentry could have anticipated this. Therefore, such an invention would not be considered fit for protection under the Patent Act 1970, India.
Particularly, there should exist an inventive step. This means that the invention should add to the existing body of technology and science. Lastly, it should have an industrial application i.e., it should have some commercial value. Therefore, inventions which do not have any industrial application are termed as utility models. However, utility models are not protected in India.
Apart from this, the Patent Law in India also lists out certain inventions which not qualify to be termed as an ‘invention’ under the Patents Act i.e. they will not qualify for Indian patent protection. The list is enumerated in Section 3 of the Act.
Not patentable inventions under the Patent Law in India
1. First, an invention which is frivolous or an invention which claims something contrary to the well established natural laws. Example: If someone claims that he has invented a device that can completely nullify the gravitational force of the earth, it would be deemed a frivolous invention and hence not patentable.
2. Secondly, an invention whose use will prove contrary to public order or morality, or will cause serious detriment to human, animal or plant life. Ex: Any form of arms and ammunition like guns etc are not patentable since its primary use is against public morality.
3. The mere discovery of a scientific principle or the formulation of an abstract theory would not amount to an invention.
4. The mere discovery of a new form of substance which does not result in the enhancement of the known efficacy of the substance would not be termed as an invention.
5. A substance obtained by a mere admixture is also not patentable. Example: Mixing of any acid and base results in the formation of a salt and water. Such salt will not be patentable.
6. The mere arrangement or rearrangement of devices each functioning independently of one another in a known way will not be an invention.
7. No invention with respect to atomic energy is patentable. This is owing to the national interest and security of the state.
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Further, the next blog post will deal with the procedure of filing a patent application under “Indian patent act“.