Sections 3 and 4 of the Indian Patents Act, 1970 specifically state the inventions that can not be patented. Our previous blog post has comprehensively explained about the inventions not patentable in India. That brings us to the question; “what can be patented” in India?
At the outset, it has to be mentioned that the answer to this is not set in stone. There isn’t any definitive list as to what can be patented. There are, however, certain criteria that are required to be met in order to make an invention patentable. The patentability of an invention is determined by its ability to meet the criteria.
Even before delving into the criteria, it is important to understand the “invention meaning” and “patented meaning“. According to Section 2(j) of the Indian Patents Act, 1970 an invention means “a new product or process involving an inventive step and capable of industrial application“, such invention protected under the patent law refers to patented.
The following criteria determine the patentability of invention in India:
1. Patentable subject matter:
The foremost consideration is to determine whether the invention relates to a patentable subject-matter. Sections 3 and 4 of the Patents Act list out non-patentable subject matter. As long as the invention does not fall under any provision of Sections 3 or 4, it means it has patentable subject matter (subject to the satisfaction of the other criteria).
Novelty is an important criterion in determining patentability of an invention. novelty or new invention is defined under Section 2(l) of the Patents Act as “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”.
Simply put, the novelty requirement basically states that an invention should never have been published in the public domain. It must be new with no same or similar prior arts.
3. Inventive step or Non-Obviousness:
Inventive step is defined under Section 2(ja) of the Patents Act as “a feature of an invention that involves technical advance 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”. This means that the invention must not be obvious to a person skilled in the same field as the invention relates to. It must be inventive and not obvious to a person skilled in the same field.
4. Capable of Industrial Application:
Industrial applicability is defined under Section 2(ac) of the Patents Act as “the invention is capable of being made or used in an industry”. This essentially means that the invention cannot exist in abstract. It must be capable of being applied in any industry, which means that the invention must have practical utility in order to be patentable.
These are the statutory criterion for the patentability of an invention. Apart from this, another important criterion for getting a patent is disclosure of an enabling patent. An enabling patent disclosure means a patent draft specification must disclose the invention sufficiently, so as to enable a person skilled in the same field as the invention relates to, to carry out the invention without undue effort. If the patent specification does not disclose an enabling patent then a patent will most definitely not be granted.