3. How to find-out if my invention is patentable in India or not ?

3. How to find out if my invention is patentable in India or not?

Table of Contents

The Purpose of this article is to help you understand:

  • how to know if your invention is patentable subject matter or not ?
  • definition of invention as per patent act India
  • patentability criteria’s : novelty, inventive step and industrial application 

How to find-out if my invention is patentable in India or not ?

This is probably the first question that may arise in your mind if you are looking to get protection for your research and development (invention).

  • The invention should be Patentable subject matter that is it should not fall under non patentable inventions as per section 3 and section 4 of patent act India.
  • and it should qualify the patentability criteria of novelty, non-obviousness and industrial application as explained in detail below

The quick and the easiest way to find out if your idea or invention falls under patentable category would be to have a quick discussion with Patent agent or patent attorney  since, it will not cost you any money or charges as initial discussion about patent is free and more over the confidentiality and secrecy of your invention is maintained since the Non disclosure agreement (NDA) is signed by patent agent or Intellectual Property firm before going ahead with discussion about invention.

however, below are details for your understanding :

The invention that are not patentable in India :

The section 3 of patent act in India has specified certain subject matters are not eligible for getting a patent in India. Some of these areas are;

inventions not patentable
  • Inventions falling within the scope of Sec. (3) of Patents Act, 1970.
  • Inventions falling within the scope of Sec. (1) of Sub-sec. 20 of Atomic Energy Act, 1962

The following are not inventions as per Section 3 of the patent act

(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

(b) an invention 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;

(c)    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;

(d) 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.

(e) 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;

(f)  the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(g)..(omitted)

(h)  a method of agriculture or horticulture;

(i) 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.

(j) 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;

(k)   a mathematical or business method or a computer program per se or algorithms;

(l)   a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing the game;

(n)   a presentation of information;

(o)   the topography of integrated circuits;

(p)   an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.

And as per Section 4 of the patent act Inventions relating to atomic energy are not patentable.

What is an Invention that is patentable ?

an invention relating either to a product or process that is new, involving inventive step, and capable of industrial application can be patented.

Provided the invention is not falling under the categories of inventions that are non-patentable under sections 3 and 4 of the Patent Act. (for details see section on inventions not patentable below )

Here is how an invention is defined in patent act 1970:

Section 2(1)(j) “invention” means a new product or process involving an inventive step and capable of industrial application;

Section 2(1)(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

Section 2(1)(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art;

Patentable subject matter

  • relates to a Process or a Product or both
  • be new (Novel)
  • involves an inventive step
  • be capable of industrial application
  • not fall under Section 3 and 4

What we can learn from it:

If your innovative idea is a product or a process that has novelty, has an inventive step, and is capable of industrial application then the invention is said to be a patentable invention.

Now let’s look at each patentability criteria one by one so that we can see if our innovative idea satisfies them and whether we should proceed with a patent application.

Is my idea or invention patentable in India? what can and can not be patented a video by Prasad Karhad

what are patentability criteria in India

  1. Novelty means the information you have written in the specification of your patent application (subject matter) is not published or know to or available to the public in India or elsewhere before the date of filing of the patent.
  2. An inventive step: a subject matter in a patent application having inventive step means, the invention disclosed is not obvious to a person skilled in the art. Especially with reference to the prior art or the information already know or available to the public. In other words, the invention should not be obvious to people who are from the same field of invention. In other words, the inventive step means an aspect of the invention that involves a Technical advance or economic significance or both with respect to existing knowledge, thus making invention non-obvious to a person skilled in the art.
  3. Industrial application: as the name suggests, an invention to be patented should have a utility that is it is capable of being made and used in industry.

The information of invention should also need to be Enabling. that is the information disclosed in the proposed invention should be sufficient to reduce it in practice. And this information must be included in the patent application for the invention.

In accordance with the Indian patent act, The term enabling means: Any person, who is ordinarily skilled in the art, should be able to reduce the invention into practice with the help of the information disclosed in the patent application.

lets discuss each patentability criteria in detail :

Newness or novelty requirement

Sections 2(1)(l) and 2(1)(j) of the Patents Act highlight the difference between a new invention and an invention.  A ‘new invention’ is defined as:

any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art.

An invention is said to be novel if all elements of a claim of the invention are not anticipated by a single prior art that is published, or used, or known to the public.

Inventive step or non-obviousness

Now let’s talk about the inventive step, also known as the non-obviousness test for your innovative idea.

An inventive step is said to be present in your invention when it has a technical advance as compared to the existing knowledge (that is a state of art of your field of the invention) or it has economic significance or your invention has both of them then your invention non-obvious to a person skilled in the art.

So, we need to identify a feature of our invention that is either technically advance or it is economically significant or both, when it is compared to state of the art or existing knowledge such that our invention becomes non-obvious to a person skilled in the art.

Technical advance means some feature of the invention is having advancement which is technical in nature as compared to the existing knowledge.

A person skilled in art is a person who has average skills from your domain. For example, if your invention is related to a mechanical device the person skilled in the art would be from mechanical background. If there are multiple technologies used in the invention then a person skilled in the art is assumed to have all the knowledge (that is available and known to the public) from the technologies involved. This is to assess the inventiveness of the invention.

The idea here is our invention should not be obvious to a person skilled in the art (that is an average person from a background of the field of the invention).

In other words, considering the state of the art (things that are already known to the public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as the non-obviousness test.

And one of the ways to qualify for the non-obviousness test of patentability is proving to the examiner that our invention is solving a long-standing problem in the industry. Pointing out that the problem existed for a long time and there was a need to solve the problem, also mentioning existing prior arts and patent references who tried before but could not solve up to a certain extent   (stating problems with the prior arts in the background of the invention while drafting patent) and since the problem has not solved till now it ultimately means the solution to the problem that is our invention was Not obvious.

Now, this is not your job as an inventor to do all this, in fact, this is the responsibility of a patent agent or patent attorney working on your invention.  an experienced patent professional would be asking you for the required details and technicality of your invention and using such information while drafting patent application for your invention which gives a very good chance for your patent application to stand through the examination stage till the grant of patent.

Industrial application or utility

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

Industrial application means invention is capable of being made or used in any kind of industry. This is also known as usefulness, a patented invention should be able to be produced on a large scale that is it could be created, used and repeated. In general, this patentability requirement of usefulness or industrial application is not much of a problem to prove.

you may also like to read  cost of filing patent in India

But probably most important of all these questions would be a question that you as an inventor need to answer is

“whether I have sufficient information about my invention that I can explain on paper or in a document that can enable a person (skilled in the art) to practice your invention?”

In other words;

“Do I know my invention with such a granular detail that upon reading my patent on the invention any person who is skilled in the field of my invention can perform the invention without any difficulty?”

If the answer to the above question is yes !!! Then it’s time that you should go for patent protection.

we have also created a detailed guideline to help you understand, what is the exact information you should be ready with before going for patent application

in most cases you should be able to note down on a paper or create a document (ppt, report, explainer, thesis, project report, etc.) or you may create a video explaining your invention and that is sufficient to proceed with patent filing.

Having said that, there are still ways you can protect your invention even if it is not completely developed or researched yet.

You find yourself in a situation where you do have an invention that is patentable and commercially worthwhile to get patented, But your answer to the above question is No!!! and you are not yet done with your research or development of the invention. Still, you can secure the date of priority (which is very important) by going for a provisional patent application.

In case you are at a very early stage in the research and development of your invention, then you can go for a provisional patent application. It gives following benefits:

  • Secures filing date
  • 12 months of time to file complete specification
  • Low upfront cost

After filing a provisional application, you secure the filing date which is very crucial in the patent world.  You get 12 months of time to come up with the complete specification, upon expiry of 12 months your patent application will be abandoned. for more details read our section on provisional patent application and its advantages.

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Prasad Karhad
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