WHAT IS A PATENT?

Patent for any invention is granted under Section 2(m) of the Patents Act. A Patent is an exclusive right granted by the Government of India, to inventors to exclude others to use, make and sell an invention during a specified period of time.

Furthermore, a patent can also be granted to an improvement which the invention has done in the previous invention.

For Patent's grant, the invention is a must, and invention according to Section 2(j) of the Patents Act, 1970 means a new product or process involving an inventive step and capable of Industrial Application.

According to Section 2(ja), the Inventive Step is a feature of an invention that involves technical advance compared to the existing knowledge or having economic significance, and the invention shall not be obvious to a person skilled in the art.

Hence the essential Ingredients of Patent are:

• The invention must be unique, i.e., the invention must not be in existence.
• The invention must be non-obvious, i.e., the Invention must be a significant improvement to the previous one; mere change in technology will not give the patent's right to the inventor.
• The invention which has been done shall be of bonafide use.

EXCEPTION

Below Mentioned are neither a part of Invention nor entitled for Patent's grant under the Patents Act.

• An invention which is obvious or frivolous or by any means contrary to well-known natural laws;
• An invention that is intended to cause commercial exploitation or which could be contrary to public order or morality or which can cause serious prejudice to human, animal or plant life or health or the environment;
• Merely discovering a scientific formulation or principle from an abstract theory.
• Merely discovering any living or non-living substance in nature;
• Mere discovery of a new form of some known substance which does not result in the enhancement of the known efficacy of that substance or a mere discovery of any new use of a known substance or a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
• A substance found by merely mixing or aggregating properties of a component to produce a substance;
• Mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
• 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 the game;
• A presentation of information;
• The topography of integrated circuits;
• In effect, an invention is a piece of traditional knowledge or aggregation or duplication of known properties of a traditionally known component or components.
• Any innovation in the relation of Atomic energy is also not included under Patent.

CASE LAW:

MERE DISCOVERY IS NOT AN INVENTION

The Hon’ble Supreme Court in the Matter of Novartis Ag vs Union Of India & Ors has laid down the settled law principle that mere discovery is not an invention. The court has held that it must also be kept in mind that each of the different forms mentioned in the explanation has some properties inherent to that form, e. g., solubility to salt and hygroscopicity to a polymorph. Unless they differ significantly in the stuff about efficacy, these forms are expressly excluded from the definition of “invention”. Hence, the mere change of form with properties inherent to that form would not qualify as “enhancement of efficacy” of a known substance. In other words, the explanation is meant to indicate what is not to be considered as therapeutic efficacy.

Author: Bhaskar Aditya