Patent Idea: What is Patent and Which Invention can be Patented?
In all forms of Intellectual property rights, Patent Idea is the most powerful right, a patent is a Monopoly Right conferred by the controller of patents in India to an inventor for a period of twenty years from the date of invention in return of inventing something new using skill, judgment, capital, and knowledge. The right is for commercial exploitation of the invention and to prevent others making or using etc the patented invention. The inventor can transfer his rights by way of authorization in favor of any person.
Patent is a negative right. It prohibits the third person from exploiting patented invention without permission of the patentee
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
“ The object of patent law is to encourage scientific research, new technology and industrial progres. Grant of exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the invention at the patent office, which after expiry of the fixed period of the monopoly, passes into the public domain”
From above discussion, it is clear that a patent or an patent idea is an exclusive/monopoly right in favor of an inventor or his assigns for commercial exploitation of an Invention for a fixed period of time starting the date of invention. At present, the term of patent in India is valid for a period of twenty years.
A patent is granted for an invention to the inventor or the person to whom the inventor assigns the right or the legal heir in case of death of the inventor. Section 9 of the Patents Act defines An Invention as a new product or process involving an inventive step and capable of industrial application, All inventions cannot be granted a patent, to be patentable an invention must pass following tests
- 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)
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
“ The fundamental principle of Patent Law is that a patent is granted only for an invention which must be new & useful. That is to say, it must have novelty and utility. It is essential for the validity of a patent that it must be the inventor’s own discovery as opposed to mere verification of what was already known before the date of the patent”
- 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
“ New product in chemical and especially pharmaceuticals may not necessarily mean something altogether new or completely unfamiliar or strange or not existing before, It may mean something different from a recent previous or one regarded as better than what went before or in addition to another or others of the same kind. However in case of chemical and especially pharmaceuticals if the product for which patent protection is claimed is a new form of a known substance with known efficacy, then the subject product must pass”
Section 3 of the Patents Act prescribes a list of inventions which are not patentable, these are as under
- 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.
Section 4 of the Patent Act prohibits any invention relating to atomic energy from the scope of patentability
INDIA: Delhi, Mumbai, Bengaluru, Kolkata
CHINA: Foshan City, Guangzhou