NOVELTY TEST UNDER PATENT LAW IN INDIA

Introduction

A patent is an intellectual property right given to inventors with respect to an invention that is publicly revealed in exchange for exclusive rights over their own production. So, a patent is a government-issued legal document that grants an inventor the exclusive right to produce, use, sell, or transmit an invention for a set period of time. The patent system’s aim is to enable inventors to develop the state of technology by giving them exclusive rights to profit from their inventions. The patent law’s goal is to promote scientific innovation, new technology, and technological advancement. The award of an exclusive right to own, use, and sell a proprietary process or commodity for a limited time encourages new commercial utility inventions. The price of registration of a monopoly is the disclosure of the invention at the patent office, which then passes into the public domain after the monopoly term has expired. India, as a signatory to the TRIPs Agreement, has changed its patent laws. To be patentable, an invention must pass three simple examinations. First, it must be novel, which means it has never been done before. Second, the innovation must be non-obvious, which means that it must be a major advancement over current technology. Simple modifications to existing devices do not qualify as a patentable invention. Finally, the proposed technology must be useful and applicable to industry. For inventions that can only be used for illegal or unethical purposes, no patent would be issued. An improvement on anything previously known or a combination of previously known matters must be more than a mere workshop improvement to be patentable, and must independently assure the test of invention or a “inventive phase.” The innovation or variation must produce a new result, a new article, or a better or cheaper article than before to be patentable. A collection of old known integers can be combined in such a way that their working inter-relationship produces a new process or a better result. A patent is not granted for the simple collocation of more than one invention or things that does not involve the use of any creative faculties.

Test of Novelty in India

The concepts of novelty and inventive step, or lack of obviousness, are central to patent law. The novelty of an innovation is determined by the state of the ‘prior art,’ which refers to existing expertise and similar innovations in the field. In the light of what is already understood to the public, an innovation is said to require an inventive step if it is not evident to a so-called professional individual, i.e., someone with strong expertise and experience in the field. The Indian Patent Act, 1970, Sections 2(1) (j), 13, 29, 30, 31, 32, 33, and 34 must be considered when determining if an invention is new. A modern technology is one that has not been anticipated by prior publication, use, or general knowledge. If an innovation has not been revealed in the prior art, it is new. The prior art includes anything that has been written, discussed, or otherwise disclosed to the public before the date of filing of the complete specification. However, the Indian Patent Act does not describe the term “state of art.” In such a case, it must be determined based on the court’s interpretation of the definition. In English Law, the state of art in the case of an invention is described as all matter (whether a product, method, information about either, or anything else) that has been made accessible to the public (whether in the United Kingdom or elsewhere) by written or oral description, usage, or in any other way at any time before the priority date of that invention. As a consequence, the definition of ‘state of art,’ which is not specified in the Indian Patent Act, 1970, can lead to the incorporation of European/English standards of novelty into Indian law. 

An application for a patent filed at the Indian Patent Office before the date of filing of the complete specification of a later filed application but released after the latter is considered for the purposes of deciding novelty. The patent examiner considers the important papers, such as the specification, when determining innovation. Where a provisional specification is filed, the full specification must be filed within one year, with the latter application taking precedence. If all of the features of the innovation under consideration are present in the cited prior art, it will be deemed anticipatory in nature. The prior art should either explicitly or implicitly reveal the invention. Where a prior art is quoted as an anticipation in the Examination Report but is not considered to be an anticipation due to Section 29-34, the claimant bears the burden of proof. To be patentable, a new product or process must be improved upon an existing process or product. It is not necessary for the invention to be complicated or difficult. It must simply be of such a type that it represents a scientific improvement over prior information. To be new in the patent context, the innovation must be shown in the invention. It is not enough that the intent is novel or that the application is novel in order for the product to be novel in that context. The method of application has to be special.

Conclusion

An invention cannot be patented if it was recognized or used by anyone in India, or patented or mentioned in a printed publication in India or a foreign country, prior to the priority date of the applicant. As a result, one of the most important conditions of patentability is the test of novelty. This has long been recognized as a necessary condition for patentability.

DISCLAIMER- 

The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.