INNOVATION VS INTERESTS: AN ANALYSIS OF PATENTABILITY OF THE INVENTIONS
Category: IPR Law
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Keywords – Patents, Intellectual Property, Novel, Inventive, Patentability, industrial application, non-obviousness.
INTRODUCTION
The only special gift distinguishing the human race from the other species is the ability to feel consciousness and use the human intellect. This is the foremost evolutionary step in the nerve line of the entire human race.
Science, technology, arts, literature, music, cuisines, and all other creative works are the outcomes of the human intellect.
Intellectual Property is the creative work of the human mind. It is unlike some tangible property that can be sensed or touched. It is an invisible or intangible product containing an innovative nature in itself. Sometimes intellectual property could be described as “knowledge goods”.
With the advancement of technology, intellectual property has a wider and wider application. Within its scope, it protects industrial designs, patents, copyrights, trademarks, and more. Everybody who develops a new concept, invention, or technological advancement attempts to obtain rights and protection under the purview of intellectual property. Three concepts are covered by patent law: novelty, uniqueness, and usefulness. The Patents Act, 1970 governs it in India. It has been further amended by the Patents (Amendment) Act, 2002, and the Patents (Amendment) Act, 2005.
Since intellectual property is a type of property, it can be defined as any entity that falls under the ownership rights of its owner. It might also refer to the sole authority to dispose of and exercise control. Intellectual property rights are those exclusive rights.
RATIONAL BEHIND PATENTS
A patent is an inventor's exclusive right—practically, a monopoly right—to commercialize his invention for a limited time, subject to the terms of the Patents Act of 1970. This right is granted by the Patent Office. The inventor has the right to prohibit third parties from using his invention for profit during this time. Patent rights are statutory. In nature, and the aforementioned right derives from the Patents Act. An invention is related to a patent.
As per English Halsbury S Laws. The term "patent" refers to the monopoly right to use an invention.
Prior to the issuance of a patent, the patent holder must clearly and completely describe the invention in the patent application, providing enough technical details so that someone with ordinary skill in the field could implement the invention just by reading the description. Stated differently, the invention has been made public prior to the issuance of a patent. The public receives helpful information from invention disclosures, which helps prevent unnecessary duplication of effort and cost increases associated with technical problem-solving research. The granting of a patent not only honours and rewards the inventor's inventiveness, but it also serves as motivation for future inventions, ultimately advancing a country's technological advancement.
IS GETTING A PATENT A MUST?
An inventor is not required to file for a patent in relation to his creation. It is not required. Rather than disclosing his invention and filing for a patent, the inventor might prefer to keep it a secret. But, in cases where an inventor chooses not to file for a patent and instead uses his invention while keeping it a secret, he bears the risk that his creation will be discovered independently or through reverse engineering, information shared by someone with access to it who is not required to keep it secret, or both. If this is the case, other people might begin producing the item using the same invention.
The Allahabad High Court ruled in Shinning Industries v. Krishna Industries that
“An invention is not a property right unless it has received a patent.”
This is the reason why innovators typically apply for patents, which grant them the exclusive right to use their inventions for a predetermined amount of time.
PATENTABILTY OF AN INVENTION
Before diving into the patentability of the invention, we all first must understand the meaning of the term “inventions” in accordance with the specifics of the Patents Act, 1970.
"Invention" means a new product or process involving an inventive step and capable of industrial application.'' A bare perusal of the definition of invention clearly shows that even a process involving an inventive step is an invention within the meaning of the Act. It is, therefore, not necessary that the product developed should be a totally new product. Even if a product is substantially improved by an inventive step, it would be termed to be an invention.”
We are aware that not all inventions are granted patents; rather, patents are awarded to the inventors of inventions that meet certain requirements. These circumstances include the following:
1. Novelty,
2. Inventive Step or Non- obviousness,
3. Capable of Industrial Application,
4. Shouldn’t be explicitly non-patentable under the act.
NOVELTY
The invention needs to be original and distinct from any other ideas or products already on the market. As per the Patents (Amendment) Act, 2005, Section 2(l), a "new invention"
“An invention that has not been anticipated by prior publication and does not fall into the public domain. There must be no prior publication of the invention.”
No previous publication of the invention is permitted. Still, a discovery is not the same as an invention. The significance of the two requirements for patent issuance—necessity and utility—was acknowledged in the 1979 Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries case.
In F. Hoffmann – La Roche Ltd. v. Cipla ltd., the court stated that the term “new invention” has not been used anywhere in the act, however, the relevance of the provision lies in the fact that it gives a flavour of the intention of the legislature.
In the 2005 Gopal Glass Works Ltd. v. Assistant Controller of Patents case, it was noted that an invention had to be novel and inventive in order to be granted a patent. novelty on its own.
Being novel by itself does not make a criterion complete. Additionally, the invention or product needs to be sufficiently unique.
INVENTIVE STEP OR NON-OBVIOUSNESS
An inventive step is an
aspect of an invention that, to the best of an expert in the field, is not
immediately apparent and involves either technical advancements over the state
of the art, economic significance, or both.
The patent holder must demonstrate that the invention includes either technical
advancement, economic significance, or both in order to satisfy the inventive
step requirement. Therefore, the possibility of granting a patent based only on
economic significance weakens and dilutes the requirement of technical
advancement.
An inventive step was, by the amendment of 2002, defined as a step that makes the invention not obvious to a person skilled in the art. By further amendment in 2005 “inventive step has now been defined to mean "'a feature of an invention that involves technical advance as compared to the existing knowledge significance or both and that makes the invention not obvious to a person skilled in the art.' The inventive step should be such as could not have been discernible to the or having economic unimaginative person skilled in the art and not something which was published in the prior art.
An invention must not be obvious in order to be patented. The essential component of inventive step and novelty would vary depending on the specifics of each case. There cannot be any novelty in the subject matter if the specific manufacturing method is the same. It suggests that something is obvious if there isn't an inventive step.
In Bishwanath Prasad Radhey Shyam V. Hindustan Metal Industries, the Supreme Court observed that the expression "does not involve any inventive step used in section 26(1)(e) of the Patents and Designs Act, 1911 and its equivalent word "obvious had acquired special significance in the terminology of patent law. The "obviousness had to be strictly and objectively judged. For this determination several forms of the question have been suggested.
CAPABLE PF INDUSTRIAL APPLICATION
According to Section 2(1)(j) of the Indian Patents Act, 1970,
any product or process that involves an inventive step and is capable of being used in the industry is called an invention. This definition makes it clear that the invention must have an inventive step and it must not be known to any skilled person in that particular field. Section 2(1) (ja) of the Act defines ‘inventive step’.
In the Indian case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979), the notion of inventive step was first introduced. It also restated the four obviousness tests. These are the following:
1. The inventive step in the form of earlier use, art, or knowledge must be recognized by a skilled individual.
2.
He needs to be able to distinguish between
the invention and the subject matter.
It is important to take note of the variations.
3. A certain amount of creativity is required.
Capable of industrial application means that the invention is capable of, being made or used in an industry.
In Indian Vacuum Brake Co. Ltd. v. E.S. Luard, the court held that mere usefulness was not sufficient to support a patent. In the case of Young and Neilson v. Rosenthal & Co., Grove, J. described "utility' as meaning an invention better than the preceding knowledge of the trade as to a particular article In F. Hoffmann-La Roche Ltd. V. Cipla Ltd., the court stated that section 2(1) ac) necessitates that an invention must have commercial use or manifestation. Further, even though an alleged invention may not be a final product, the same will be patentable only f it has some commercial viability. Thus, it is not the product which is the focus of attention but the actual physical substance created which has the potential of a commercia manifestation. Section 2(1) (ac) is clearly connected with section 48 (Rights of Patentee) as it deals with "made or *used' which are used in section 48.
NON-PATENTABLE INVENTIONS
Section 3 outlines various situations where an invention is proper yet be not patentable.
In F. Hoffmann-La Roche Ltd. Cipla Ltd., the court stated that they relate to inventions that may otherwise meet the tests of 'invention and V. `inventive step but may still not be granted patents as section 3, followings are not inventions within the meaning of the Act matter of policy.
According to section-3, followings are not inventions within the meaning of the act-
I. an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
II. an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
III. the mere discovery of a scientific principle or the formulation of or discovery of any living thing or non-living substance occurring in nature.
IV. the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless şuch known process results in a new product or employs at least one new reactant?"
V. a substance obtained by a mere admixture resulting only in the aggregation of process for producing such the properties of the components thereof or substance;
VI. the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
VII. a method of agriculture or horticulture;
VIII. any process for the medicinal, surgical, curative, prophylactic (diagnostic therapeutic) or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
IX. plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes fo- production or propagation of plants and animals;
X. a mathematical or business method or a computer program per se or algorithm;
XI. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
XII. a mere scheme or rule or method of performing mental act or method of playing game;
XIII. a presentation of information;
XIV. topography of integrated circuits;
XV. an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components;
In addition to the aforesaid, no patent is to be granted in respect of an invention relating to atomic energy.
SECTION-4 of the Patents Act, 1970.
CONCLUSION
Intellectual property encompasses any artistic creation, invention, idea, or work of intellect produced by an individual. The rights granted to such an individual for their creation, work, idea, or invention are referred to as intellectual property rights. One type of intellectual property is patents. If an invention does not fall under the category of non-patentable inventions, it may be patentable if it leads to the creation of a new good or service or the production of an already existing good using innovative techniques and technologies. The Indian Patents Act, 1970 governs patents in India. It was amended twice, in 2002 and 2005, respectively.
Obtaining a patent for an invention requires meeting certain requirements related to patents. Novelty or freshness, utility or usefulness (ability to be applied in an industrial setting), and non-obviousness are the three fundamental requirements. Nonetheless, the patent application may be rejected for a number of reasons.
REFERENCES
1. Dewan, Mohan. “IPR Protectio: An Overview.” Journal of Intellectual Property Rights, vol. 16, 2011.
2. Law Relating to Intellectual Property Rights, 3rd Edition, V K Ahuja, LexisNexis.
3. Maine, Jeffrey A, and Xuan-Thao N Nguyen. The Intellectual Property. Cambridge, United Kingdom ; New York, Ny, Usa, Cambridge University Press, 2017.
4. Understanding the Basics of Intellectual Property. WIPO, PP Presentation.
5. Asthana, Subodh. “Patent Law: Patentability, Procedure for Grant of Patent, Limitations Etc.” IPleaders, 27 Aug. 2019.
6. Intellectual Property Rights, 2022 edition, Lexus Nexus.
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WRITTEN BY: YASH BHARDWAJ
GUIDED BY: ADVOCATE ANIK
