Patentability criteria for an invention in India



A patent is an intellectual property that permits its owner the authority to legally bar others from producing, using, or selling his creation for a certain period in exchange for publishing and allowing public disclosure with regard to the invention. The Patent Act of 1970 defines a "patent" as "a patent for any invention awarded under this Act" under Section 2(m). This article makes an effort to comprehend the idea of patentability as well as the standards set forth for granting a patent to an invention. There is no set list of things that can be patented. However, there are requirements that must be completed for an invention to qualify for patent protection. The invention's ability to satisfy the requirements determines its patentability. The inventions that cannot be patented are listed precisely in Sections 3 and 4 of the Indian Patents Act of 1970.

patent innovation in India

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It's crucial to comprehend the "invention meaning" and "patented meaning" before going into the requirements for patentability in India. Which of the following is patentable in India? Would undoubtedly be resolved by this.

Section 2(j) of the Indian Patent Act, 1970, defines an invention, and according to it an invention means “a new product or process involving an inventive step and capable of industrial application” such innovation is protected under the patent law and refers to patented.

On April 20, 1972, the Indian Patents and Designs Act 1911 was superseded by the Patents Act 1970. The Patents Act 1970 was recommended for establishment in the Ayyangar Committee Report . Justice N. Rajagopala Ayyangar served as the chairman of the committee. One of the recommendations was to allow the patenting of inventions only related to foods, medicines, drugs, and chemicals . Novelty, inventive step and industrial application are the criteria that must be fully filled for an invention to grant a patent in India.

Patentability Subject matter

Products or processes are the only subject matter that can be patentable. However, there is no such phrase as patentable subject matter in Indian Patents Act 1970. US Patent Code and TRIPS agreement use the term patentable subject matter, and India borrowed it from US Patent Code.

A list of innovations that cannot be patented is provided in Sections 3 and Section 4 of the Patents Act. The innovations relating to atomic energy are not included in the scope of patentability under Section 4, whereas Section 3 deals with a general list of topics that are not deemed to be inventions. The requirement of having patentable subject matter will not be met by an invention if its subject matter is included in the list provided under sections 3 or 4.

Essentials of Patentability Criteria


The main objective of novelty and originality is to be kept in the same way as unregistered designs. Because an invention is not novel and is already known to the public, it will not be covered by a patent because of the main concepts of novelty and obviousness. Section 2(1)(j) of the Patent Act, defines the term invention to mean “a new product or as a process involving an inventive step and capable of industrial application”

The term "New invention" is defined under section 2(1)(l) of the Patents Act.

“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."

Any claim to a process or product that the prior art foresaw cannot be granted a patent unless the end result is novel. If there is evidence that shows that there have been certain technological adjustments that have led to new outcomes, a process anticipated by the prior art may be patentable.

Inventive step/ non-Obviousness

A test known as the inventive step makes sure that an invention's original feature does not add only a minor technical effect. By awarding a monopoly to those who reveal their inventions to the public, the patent system promotes creativity. To satisfy this requirement, an invention needs to:

1. have technical advance over existing knowledge; or

2. have economic significance; and

3. should not be obvious to a person who is ordinarily skilled in the art

Section 2(1) (ja) of the Indian Patents Act describes inventive step as

"Inventive step refers to a feature of the invention that involves some sort of technical advancement as compares to the existing knowledge of public or has some economic significance or both, which makes the invention not obvious to a person who is skilled in the art."

The invention must go beyond what was known in prior. It shouldn't just be a workshop enhancement or a general rearrangement of the invention's features or components. One of the three requirements for the grant of a patent, along with novelty and industrial use, is the non-obviousness of the invention. The test is both extremely important and quite subjective; while deciding whether or not there is inventive step, the adjudicator must evaluate it according to the standards and guidelines of a person who is experienced in that field.

In the case of Windsurfing International v. Tabur Marine , the court applied the four-step obviousness test, and it did so again in Bishwanth Prasad's case Bishwanth Prasad. These steps are as follows: First, it is necessary to identify inventive steps in the form of prior usage, prior art, or prior knowledge; second, it is necessary to distinguish between known matter and a claimed invention by a skilled person; and third, it is necessary to establish inventive steps; Thirdly, it's crucial to develop or note distinctions between the aforementioned skilled person's asserted invention and Fourth, the degree of the innovation is required in order to gain the invention. Therefore, all authorities now recognize novelty as a requirement for patentability.

In the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries , the Supreme Court of India, described the term "inventive step" as the combination of new outcomes. A new result or product must be produced for enhancements to be patentable.

Industrial Application

A provision defining "industrial application" is also included in Article 33 of the Patent Cooperation Treaty , which states that a claim must be technically possible for use in any industry in order to qualify as "industrially applicable." As in the Paris Convention, the term "industry" is used here in its widest definition. India joined the pact in 2001 and inserted section 2(1) (ac) by the Patents (Amendment) Act of 2002. Section 2(1) (ac) of the Patents Act defines Industrial applicability as "the invention is capable of being made or used in an industry". An innovation must be capable of being made or used in the industry, according to the definition. Nevertheless, there appears to be some scope for interpretation as to what may or cannot be regarded as being able to be applied in the industry due of the provision's ambiguous phrasing. The term "industry" in this context can mean a wide range of things, including agriculture.

Requirements of industrial applicability help to address the severe issue of speculative and hazy applications. Any claims that may or could not be achieved with more research or work would not satisfy the industrial applicability requirement, which, in a sense, preemptively rejects any potential attempts at patent trolling.

The following case studies connect to this provision

In Chiron Corp v. Murex Diagnostics, 1996, it was determined that the phrase "capable of the industrial application" must have the broadest possible meaning of commerce or production and that there must be a financial benefit because no company would employ something that would be worthless.


India has realized the value of highly developed patent systems for the expansion of business and industry in order to catch up to the developed world as the Indian economy has grown. It is predicted that more accurate techniques for identifying the presence of inventive steps in innovations will need to be developed; therefore, inventors will need to stay current with relevant global laws. But, the availability and price of medications for the poor in developing nations like India are, which does not impact the affluent and elite class of people. In developing nations like India, bad health promotes poverty, which in turn breeds poor health. The Patent Act 1970 in India, which deals with the Patentability criteria, has to be changed significantly in order to make them as strict as possible when granting patents to inventions in the field of pharmaceuticals in order to address the issue of the poor and the critical state of India's health.

Author: Akanksha Chaudhary, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, 2nd year. in case of any query, contact us at Global Patent Filing, or write back us via email at

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