Introduction:
Before patent registration is sought, it is necessary to determine whether the invention is patentable or not. Despite being inventive, certain materials, processes or ideas might not be eligible for patent protection. There isn’t a concrete list as to what can be patented; nevertheless, there are certain criteria, that need to be met, for an invention to be patentable. The competence of an invention to satisfy these requirements, ascertains its patentability, besides figuring out the likelihood of it acquiring a patent. If the said requirements are met, a wide range of inventions, including manufacturing methods, electronic gadgets, widgets, and even plants may be patented.
Patentability Criteria:
Every country has their own criteria to judge the patentability of an invention. However, Novelty, Non-obviousness/ Inventive step and Industrial Application are the basic requirements, that need to be fulfilled for an invention to qualify for the grant of a patent.
Novelty
An innovation’s originality is confirmed through the patent procedure. However, the same need to be substantiated before the Patent Officer. The invention must exhibit a novel element, which is a new feature that does not exist in the prior art, i.e., the body of existing knowledge in its technical field; or is some relevant discovery, new product, or method is produced by the invention.
Novelty, in accordance with Section 2(l) of the Patents Act is, “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.” To reiterate in a simpler manner, the novelty criterion essentially asserts, that an invention must be distinctive, unrelated to any past works and should never have been published in the public domain.
Non-obviousness/ Inventive Step
The invention must be “non-obvious” or include an “inventive step” to be patentable. Section 2(1) (ja) of the Patents Act defines an inventive step 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 indicates that the invention cannot be obviously comprehended by someone with ordinary expertise in the corresponding technical field. Probably the most difficult to ascertain, this criterion is purely subjective. While determining the non-obviousness of an invention to someone with “reasonable skill in the art,” the Patent Office will take into account the ease with which such person might replicate an identical version of the invention in the field concerned.
Industrial Application:
The invention must be practical or capable of industrial application, which means that it must be able to serve purposes other than that of a theoretical phenomenon, in business or industry. Patents are issued to ensure that the creator can freely use their creation without worrying about competitors. In this regard, it is essential that the invention be usable and have industrial application. The Indian Patents Act, 1970 defines “capable of industrial application” as “capable of being created or utilised in an industry.” This basically indicates that the innovation cannot merely exist in an abstract form. In order for an innovation to be patentable, it must be usable in any industry, which implies that it must be useful and feasible to actually manufacture the new idea. Simply put, a patented invention should be able to be produced on a large scale, that is it could be created, used and repeated.
Conclusion:
The process of grant of a patent involves multiple inspections and approvals; therefore, it is crucial to review and adhere to the patentability standards in order to prevent the Patent Office from rejecting a patent application. However, in addition to fulfilling these statutory criteria, disclosure of an enabling patent is also crucial for obtaining a patent. An enabling patent disclosure means, sufficient description of the invention in the patent draft specification.
Moreover, sections 3 and 4 of the Indian Patents Act list out non-patentable subject matter. Subject to the satisfaction of the above-stated criteria, as long as an invention does not fall under the purview of sections 3 and 4, it shall be eligible for patent protection.