In Bishwanath Prasad Radhey Shyam Vs. Respondent: Hindustan Metal Industries, Citation: AIR1982SC1444,(1979)2SCC511, Justice Sarkaria observed following as the rationale of Patent system justifying its monopolistic practice of owning an invention
- NOVELTY : A patent is granted for invention resulting in product or process which is new (novel). Any prior knowledge, written or oral description, evidence, testament, scripture, document anywhere in the world is considered as prior art which destroys the novelty of the product or the process. The novelty/patent idea is lost where an inventor uses the invention secretly till the time it becomes a success and then apply for Patent at the most advantageous moment. The invention will no more a useful invention. A patent search is very useful to ascertain if the invention is novel or not
- INVENTIVE STEP : The product or process must be a result of certain inventive steps by following which the product can be created by others or the process can be performed by others, the inventive step means some technical advances as compared to already known method or process and it should not be obvious to a person skilled in the art.
- INDUSTRIAL APPLICATION : The product or the process should be capable of industrial application. (That the product can be produced in masses by following inventive steps in any factory, and in case the invention is a process then it must be capable of to be used in an industry on regular basis)
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Court Rulings on Patentability of an Invention
- Supreme Court has laid down following important principles on novelty and patentability in Bishwanath Prasad Radhey Shyam Vs Hindustan Metal Industries (1979) 2 SCC 511 as under
- In a very recent and famous judgment In Novartis AG Vs. Union of India (UOI) and Ors. , Citation: AIR2013SC1311, (2013)6SCC1. The supreme court of India has examined the patentability of an invention vis a vis its novelty in connection with a pharmaceutical invention. It is stated that
- an invention or patent idea which is frivolous or which claims anything obviously contrary to well established natural laws;
- an invention or patent idea the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
- the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
- a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- a method of agriculture or horticulture;
- any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
- plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- a mathematical or business method or a computer programme per se or algorithms;
- a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- a mere scheme or rule or method of performing mental act or method of playing game;
- a presentation of information;
- topography of integrated circuits;
- an invention or patent idea which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.