Patentability in India
November 21, 2022
Biswajit Sarkar - IP Law Firm India
Post time: 6:36 pm
A patent is an exclusive right granted to the owner of an invention, that allows him to prevent others from making, using, or selling the invention without the consent of the owner. The patent law in India is governed by The Patent Act, 1999 (hereinafter referred to as the Act). A patent is territorial in nature, which means that it can be granted by the Central Government of India and can be enforced only within the Indian territory. A patent protection is generally conferred for a period of 20 years. It is granted for any invention, which may relate to a product or a process.
According to Section 2(1) (j) of the Act, an “invention” means ‘a new product or process involving an inventive step and capable of industrial application.’ In order to be conferred protection of a patent, an invention must meet certain eligibility criteria. This is called the patentability of an invention. The NUNS test is used as the test for patentability of an invention. NUNS stands for- Novelty (N), Utility/ Industrial Applicability(U), Non-obviousness (N), and Statutory Subject Matter (S).
Novelty
Novelty is the fundamental condition required in an invention for it to be eligible for a patent protection. It means that an invention must be novel or new and that no other such invention exists elsewhere in the world. Section 2(1) (l) of the Act defines “new invention” 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.’
The existence of novelty cannot be proved, thus, only its absence must be established before the examiner. When the invention is new, it will not have been anticipated by any published document in the world. Therefore, in a search for novelty, the examiner conducts a search in all the previous publications and prior claims relating to the subject matter of the invention.
Utility/ Industrial Applicability
An invention must be capable of industrial application. This means that it must be capable of being made or used in an industry. [S.2(1) (ac)]. An invention must have a practical purpose and must not be purely theoretical in nature. Thus, it must be possible to manufacture the invention and use that invention in practice.
Non-Obviousness/ Inventive step
As defined in the Act, an invention must involve an inventive step. An “inventive step” means 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 it must be capable of adding something to the already existing know-how in the industry.
Statutory Subject Matter
An invention may satisfy the condition of novelty, inventiveness, and utility, but it may still not be patentable, if it does not satisfy the restrictions imposed by the statute governing patent law in the respective country (Patent Act in India). Section 3 and 4 provides a list of non- patentable inventions. Any invention that falls within those grounds will not qualify the patentability criteria.
