Sections 3 and 4 of the Indian Patents Act, 1970 specifically
state exclusions to what can be patented in India. Our previous
blog post has comprehensively explained what cannot be patented in India. That brings
us to the question; what can be patented in India?
At the outset, it has to be mentioned that the answer to this is
not set in stone. There isn't any definitive list as to what
can be patented. There are, however, certain criteria that are
required to be met in order to make an invention patentable. The
patentability of an invention is determined by its ability to meet
Even before delving into the criteria, it is important to
understand the and invention meaning and patented meaning.
According to Section 2(j) of the Indian Patents Act, 1970 an invention means
"a new product or process involving an inventive step and
capable of industrial application.", such invention protected
under the patent law refers to patented.
The following criteria determine what can be patented in
1. Patentable subject matter:
The foremost consideration is to determine whether the
invention relates to a patentable subject-matter. Sections 3 and 4
of the Patents Act list out non-patentable subject matter. As long
as the invention does not fall under any provision of Sections 3 or
4, it means it has patentable subject matter (subject to the
satisfaction of the other criteria).
Novelty is an important criterion in determining patentability
of an invention. novelty or new invention is defined under
Section 2(l) of the Patents Act 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
Simply put, the novelty requirement basically states that an
invention should never have been published in the public domain. It
must be new with no same or similar prior arts.
3. Inventive step or Non-Obviousness:
Inventive step is defined under Section 2(ja) of the
Patents Act 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 means that the
invention must not be obvious to a person skilled in the same field
as the invention relates to. It must be inventive and not obvious
to a person skilled in the same field.
4. Capable of Industrial Application:
Industrial applicability is defined under Section 2(ac)
of the Patents Act as "the invention is capable of being made
or used in an industry". This essentially means that the
invention cannot exist in abstract. It must be capable of being
applied in any industry, which means that the invention must have
practical utility in order to be patentable.
These are the statutory criterion for the patentability of an invention. Apart from
this, another important criterion for getting a patent is
disclosure of an enabling patent. An enabling patent disclosure
means a patent draft specification must disclose the
invention sufficiently, so as to enable a person skilled in the
same field as the invention relates to, to carry out the invention
without undue effort. If the patent specification does not disclose
an enabling patent then a patent will most definitely not be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
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