Whether your invention is patentable in India or not? Let`s discuss it here : Any inventor before spending their precious time and money on an invention would always try to figure out if the time and money to be spent is worth spending. It will be beneficial for the inventor if gets to know the technical deficits in his invention as compared to other market products and the improvements to be done to make the invention a patentable one.
The top Guiding factors that determine whether an invention can be patented in India are as below:
- The invention should contain a patentable subject matter.
- Invention should be novel.
- The invention should be non-obvious.
- It should be commercially feasible.
- Invention should be enabling.
Whether my invention is patentable in India or not? Let’s look into the above mentioned points in detail.
What is a Patentable Subject Matter?
It is a subject matter which is worthy of patent protection. The patent laws in various countries of the world have a set of dictums which judge whether an invention will be patentable or not. This set is referred to as “non-patentable subject matter”. Effectively, the invention should fall outside this predetermined set to be patentable.
According to Section 3 of the (Indian) Patents Act, 1970, the following are non-patentable subject matter:
- An invention, that does not serve a serious purpose i.e. frivolous in nature or that claims anything contrary to the established obvious natural laws
Example: A machine that will work for an indefinite period of time without any source of energy.
- An invention, the primary or intended use of which would be contrary morality or injurious to public health
- The discovery of a scientific principle or the formulation of an existing theory
- The discovery of a new property or new use for a known substance or use of a known process, machine unless such known process results in a formation of a new product or entails at least one new reactant
- A substance obtained by a mixture resulting in the aggregation of the properties of the constituents or a process for that produces such substances
- A mere change in alignment or duplication of known devices, each of which operates independently of one another in a known way
- A method of agriculture or horticulture
- Inventions that are related to atomic energy
- Any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals.
- Plants and animals in whole or any part thereof other than microorganisms.
- Mathematical or business method or a computer program per se or algorithms.
- Dramatic, musical or artistic works, cinematographic works, television productions and any other aesthetic creations.
- A scheme or rule or method of performance of mental act or playing game.
- Presentation of information.
- Topography of integrated circuits.
- An invention which in effect, is traditional knowledge or is based on the properties of traditional knowledge.
What is Novelty?
The term novelty means new when compared to prior-art. An invention must in some way or other be different from all published articles, known market products or techniques to be patentable. This does not mean that the invention has to be ground breaking. Even if the invention has similarity in the line of work with other previously known products, it should show technological advancement and commercial viability to be patentable. The novelty requirement helps to prevent prior-art from being patented again.
What do we mean by non-obvious?
To understand this lets first know what is obviousness. The prior-art preferences when put together form the invention or in a much more lucid term if an ordinary person is able to create your invention then the invention is obvious. Also, if a person having knowledge from the same domain as that of you invention considers the invention to be known in some way or other, means the invention is obvious. Thus for an invention being patentable, it has to be non-obvious that is it should be steps ahead of the prior-art.
The invention should be such that it can be used or made to be used in the industry. This satisfies the invention’s commercial or industrial viability. If the invention fails to pass this criterion it will not be granted a patent.
The patent law requires the inventor to fully disclose the invention along with its method of construction and usage so that it yields benefit to the common man during the tenure of patent. This is known as Sufficiency of Disclosure or Enablement. The inventor while disclosing his invention is also required to state the “best-mode” of execution of his invention. This is referred to as the “best-mode” requirement.