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Basic Parameters for Patent Protection



One of the most significant aspects of patent law is the standards for patentability of inventions. They serve as the foundation for a patent’s award, breadth of protection, and patent validity, among other things.They have an impact on the patent system’s effectiveness in encouraging scientific and technological progress, economic/industrial growth, and public benefit on a broad basis. They could be considered key pieces of the patent machinery because of their value. If they fail, the patent system will fail as well.

The patentability requirements and their elements have not been spelled forth in an organized manner under the Indian Patents Act (“Act”). Though the definitions capture the criteria at a high level, delving into the details of some of them takes more time than anticipated. The Indian patent law, like those of many other countries, has five (5) patentability conditions.

The requirements for Patentability

Only if an invention meets the patentability conditions will it be granted a patent in India. To be patentable, an invention must meet all of the conditions that assess the innovation’s suitability for patent issuance from several angles.Some of the standards are easier to meet than others, but they are all equally crucial in determining patentability.

In India, there are five conditions for patentability of inventions. Patentability requirements can be thought of as a series of filters used to evaluate the patentability of inventions. Only inventions that pass all of the filtration will be eligible for a patent, while those that do not will be denied.

How Inventions satisfy patentability requirements?

Inventions are defined as goods or methods that are novel, include an innovative step, and are industrially relevant, according to Section 2(1)(j) of the Patents Act. Inventions are just those goods and processes that meet patentability standards when seen through the prism of patent law.

However, only three of the patentability conditions are included in the definition of invention, and inventions must also meet two additional requirements in order to be granted a patent. One examines the list of subjects that are not patentable even if they are inventions, while the other examines the invention’s description and viability.

  1. Subject Matter which is Patentable

The phrase “patentable subject matter” is derived from the US Patent Code and does not appear in the Patents Act. The term “patentable subject matter” is used in the TRIPS Agreement in a broader meaning than the one of this chapter. For the purposes of this chapter, patentable subject matter applies to elements that are considered patentable as well as those that are not.

The definition of innovation, which specifies that an invention under the Act must be either a product or a process, provides a comprehensive list of patentable subjects. To put it another way, an invention must be either a product or a method in order to be considered patentable. As a result, patent eligible subjects include goods and procedures that are not limited by field, technology, or any other factor.At a high level, every invention is either a product or a method, and patentability challenges are uncommon at this level. The Patents Act, on the other hand, includes a large list of non-patentable inventions that are an important part of the patentable subject matter requirement.

The following key exclusions to patentability in Section 3 have been examined in this chapter to clarify the section’s applicability and analysis: Section 3(d): New Forms; Section 3(k): Computer Programs in General; Section; 3(j): Plants and Animals; and Section 3(p): Traditional Knowledge.

  • Industrial Applicability

The industrial application requirement (Section 2(1)(ac)) determines whether an innovation can be manufactured or used in industry. A product is regarded industrially applicable if it can be made repeatedly and has at least one application in a certain industry. To meet this condition, a process must be able to be employed in an industry.Use that is ambiguous, hazy, futuristic, or non-specific is not regarded legitimate. The same is true when a product or procedure is used in an insubstantial or untrustworthy manner.

  • Novelty

Only if a product or procedure is original and inventive will it be regarded an invention under the Patents Act. Simply said, novelty refers to what is new as of the priority date of the patent application. If an innovation differs from what is already known as “prior art,” it will be considered new.Previous art references are not pooled for novelty analysis, and novelty is always examined in light of a single prior art reference at a time. However, general art knowledge not explicitly stated in a prior art reference can be read into the reference.

The Patents Act does not define novelty, although it is addressed in various sections dealing with inspection, anticipation, objection, and revocation.

Prior publication and filing of a patent will not diminish the novelty of an invention if the publishing or filing was based on improper acquisition or in violation of the inventor’s or applicant’s rights. The invention’s uniqueness will not be questioned if it is displayed at a government-approved exhibition.For a period of twelve (12) months from the date of the aforementioned publication, prior publication of the invention before a learned society will not be considered prior art. A twelve-month grace period is also allowed for past public work, equating to a reasonable trial.

  • Inventive Step

All of the patentability requirements are subjective and difficult, but the inventive step requirement is the most subjective and complex. The Indian Patents Act considers two factors when determining inventive step: technological advance or economic significance, and non-obviousness. The inventive step is defined in section 2(ja) of the Patent Act.

In order to meet these criterions, an invention must:

  • Have a technical advantage over what is already known; or
  • Have economic implications; and
  • It must not be clear to an expert in the field.

Any prior art resources form the basis for determining technical advance and non-obviousness. Prior art sources might be chosen, amalgamated, and integrated to determine creative step. Obviousness is judged by a person of ordinary ability in the art form to which the invention belongs.The previous art references available to the person with ordinary skill in the art on the priority date of the invention are identified and integrated once the person with ordinary skill in the art has been ascertained.If a person of ordinary skill would have found the invention obvious on the priority date based on the prior art references available, the invention is deemed obvious and therefore will not meet any inventive step requirement.

  • Specification

An inventor must file a patent application with a specification in order to get a patent (Section 10). The purpose of the specification is to provide complete information to the public regarding the invention and how it will be carried out, as well as to define the invention’s bounds.A written description of the invention, as well as the mode and procedure of creating and using it, must be included in the specification. Drawings may be included in the written description where and when they are needed to fully depict the invention. If the patent office demands a model or sample as an illustration of the invention, it may be necessary to submit one.A model or sample like this, however, will not be included in the specification. If the invention involves biological materials, those items may be deposited at a recognized repository in order to disclose the invention, and those materials will be included in the specification.


To summarize, an invention’s patentability is contingent on meeting all patentability standards set forth in the Patents Act. The Act’s provisions may be distilled into five patentability conditions. They are included in a variety of sections, ranging from the definition of innovation to the specification’s elements.Each condition assesses the patentability of an invention from a different standpoint. The criteria are not separated by a watertight barrier, and the analysis of one need may overlap with that of another.

Contributed by:– Nidhi Jha, Legal intern at LLL

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