The requirement for patent subject matter eligibility varies globally as per patent laws and patent office procedure. The common eligibility requirement for patent protection across various jurisdictions includes novelty and non-obviousness. The novelty requirement requires that the invention must not have been disclosed publicly before the patent filing date, subject to certain conditions and exclusions. Additionally, the non-obviousness or inventive step requirement requires that the invention is not obvious to a person having ordinary skills in the art. Also, the subject matter eligibility requirement includes analysis of the main independent patent claim that varies for different fields of invention like software, pharmaceutical composition, process of manufacture, and the like.
For a patent to be granted must qualify three essential conditions based on which the invention is eligible for protection. The invention must be novel and one of its kind. The invention must be unique in nature and must not have been seen ever before. An improvement in the technology that is already existing cannot be patented.
According to Indian Patents Act, an 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. The invention must bring value to the market. It should be of use or it should possess industrial application. Any person qualified in the field of invention must be able to use it to make a benefit out of it. The use should be legal in nature and it will disqualify the eligibility if it’s invented for illegal or immoral purposes.
Industrial application as defined under the Patents Act means that the invention must be capable of bringing value to the industry. It should be capable of being practically applied to the industry. It must have practical utility in order to be patentable. It must be an invention and not a discovery. Anything found existing out of nature cannot be patented. A new invention means any invention or technology which has not been predicted or anticipated by publication in any document or used in the country or anywhere in the world before the date of filing of the patent application with complete specifications. This means that before the filing of the complete patent application the contents of the application must not have been disclosed by the inventor to anybody or should not be known to anyone in the country or anywhere in the world.
Obtaining a patent has always been considered one of the factors for successful business or an enterprise. It has been connected to the monetary benefits of the business and hence, everybody wishes to obtain a patent. While there is so much rush for patenting inventions, there are a few restrictions on what cannot be patented in India. The Indian Patents Act is the statutory authority that guides on the rules and regulations regarding patents.
Specifically, section 3 of the Patent Act talks about inventions that cannot be patented. We should always keep in mind that not everything can be patented. For example, a mere discovery of a scientific principle cannot be patented. Any invention that claims something contrary to the laws of the nature Any invention that claims something which is contrary to the law or morality or is injurious to public health. Discovering new property or substance or a new way of using something cannot be patented.
Also, a substance obtained by mixing two substances and resulting in a creation of a new one cannot be said to be an invention and hence cannot be patented. Arrangement or rearrangement or duplication of known devices, each functioning independently of one another in a known way is also not patentable. Any new method of agriculture or inventions relating to atomic energy or any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals cannot be patented.
In addition, any animal or plant discovery can also not be patented Any mathematical or business method or a computer program per se algorithms cannot be patented. If you prepare a presentation or gather some information about anything, that is also not patentable. Moreover, the typography of integrated circuits also cannot be patented. If you perform magic tricks or play games, or perform a mental act and prepare a scheme or rule, that also cannot be patented.
Furthermore, any literary, dramatic works or music or artistic works, cinematographic works, television productions and any other aesthetic creations will also not be patentable. An invention that is a way of doing things in a traditional manner, or comprises traditional knowledge cannot be patented under the Patents Act. Though the list of things mentioned hereinabove cannot be patented under the Act, they definitely can seek protection under the relevant other Intellectual Property Acts such as the Copyright act, trademark Act, Geographical Indications Act etc.
Generally, it is advisable that an invention cannot be disclosed to people without filing a patent. This is because it must be unique and unknown to the common public. If it comes in public domain then its uniqueness and novelty can be questioned. However the Patents Act provides for an exception to this and says that after the publication of the patent information in an exhibition or a magazine, the patentee can file an application within 12 months from the date of such publication or exhibition. Therefore, a grace period of one year is provided to the applicant to file for the application. If in case, the application has not been filed in that time period then the patent cannot be granted to such an application. Public disclosure of patent information is always accompanied by a lot of risks such as, the disclosed patent information can be considered as a prior art and will not be taken into consideration for patent protection, or third parties may file for the protection of a patent before the actual applicant.
It is always necessary to understand that protecting the idea against disclosure of patent information is not the same as protecting the idea from infringement. Therefore, the applicant needs to be cautious with the kind of information being shared and the platform on which such sensitive information is being shared. The misuses of the information can lead to the patent being rejected altogether.
It is a well-known business risk that disclosing an invention in public generally disqualifies the invention from being patented. However there are few exceptions provided under the Indian Patents Act which say that a patent application can be filed even if the information is disclosed in public. If a publication has been made just before the filing of the patent application, the complete specification shall not be deemed to be anticipated if the patentee proves that such publication was made by a person who was not authorized to publish such information or it was done without the consent of the patentee. Also, if the publication of invention has been made to any person of the government or the government for the purpose of investigation of the invention, then complete specifications of the invention shall not be deemed to be anticipated.
Moreover, the complete specification of the invention shall not be deemed to be anticipated if the patent application has been filed within 12 months from the date of publication of the invention worked for the purpose of trial required by the nature of such invention. In use, any information about the invention if displayed publicly after the filing of the provisional application, then the complete specification of the patent shall not be deemed to be anticipated. Also, the complete specifications of the invention shall not be deemed to be anticipated if the invention has been displayed in an exhibition, or the invention is said to have been in publication post the display of such invention in exhibition or the invention has been used by the person other than the inventor without the permission of the inventor after the display of invention in the exhibition or disclosure has been made to a society and publishing it in a transaction with such society or if the application has been filed before 12 months of such display of invention in an exhibition.
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