Non-obviousness or inventive step is one of the three criteria used by patent offices to determine the patentability of an invention, the other two being novelty and usefulness. Inventive step is generally determined as any advancement in the technical aspect of the invention. In 2005, vide Indian Patent (Amendment) Act 2005 'inventive step' was redefined. The definition of inventive step is as follows – "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. The earlier definition of inventive step was that it is a feature of the invention that makes it not obvious to a person skilled in the art. The amended definition is a combination of technical advance or economic significance, or both, and non-obviousness.
Indian Patent law through the Amendment Act made "economic significance" a criterion in the determination of inventive step and even optionally but there is guidelines from the Indian Patent Office on how this test would be applied. Despite the amendments examiners at the Indian Patent Office continue to apply the traditional test of "non-obviousness" making the first enquiry to ascertain if the invention is not obvious to the person skilled in the art and not to test if the invention passes the test of economic significance.
Economic significance in ordinary parlance may be understood as that characteristic which would increase the commercial viability of the good, which in turn pops up a question, whether commercial success can help in establishing non-obviousness. Commercial success can be a result of an effective marketing campaign which has nothing to do with inventive concept but it may be possible that a product addressing certain factors resulting in its commercial success may be of assistance in assessing obviousness. If the impugned product is solving a long due problem in that category then together with an examination of all the efforts made in that direction, the product conceivably makes a ground for establishing non-obviousness.
The important factor in establishing 'economic significance' could be how well has the developments carried out in the product been received by the consumers. In addressing this question the commercial success of the product could be of relevance. In effect the product selling itself is the best indicator.
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