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Posted By Sarthak on 15 Aug 2017

Chapter I of the Patent Act, 1970 deals with the patentability of an invention, it helps Patent Office and Courts to determine whether an invention is worthy of a patent in India or not. Section 2(1) (j) of the Indian Patent Act, 1970 defines invention as “Invention means any new and  useful—

  1. Art, process, method or manner of manufacture;
  2. machine, apparatus or other article;
  3. substance produced by manufacture,
    and includes any new and useful improvement of any of them, and an alleged invention.”

The three terms that determine the patentability criteria are ‘new’, ‘inventive step’ and ‘industrial application’. This simply mean that before an invention may be patented, it must be novel, it must involve an inventive step and it must be used in or by the industry. Only a new product, which involve an inventive step and which can be used in or by an industry can be patented.

The Supreme Court in Monsanto Co. by the IR PATENT AGENT, De Penning and De Penning V. Coramandal Indag Products Pvt. Ltd., held that ‘If the product is not the outcome of any invention of the patentee and its formula and use are already known to the public even prior to grant of its patent, the patent would be liable to be revoked’.

Supreme Court again in Norvatis AG Vs. Union of India, held that ‘for a product to be patented it needs to pass two tests laid down by Section 2(1)(j) of the Patent Act, 1970, which are test of invention and test of enhanced efficacy.’ In the same judgment the apex court also held that ‘Section 2(1)(j) of the act lays down standards for qualifying as “inventions” things belonging to different classes; and for medicines and drugs and other chemicals substances.’

Section 2(1)(j) of the Patent Act, 1970 was enacted as an helping agent for the Patent office and Courts to determine whether an invention is capable of being patented or not. This gives a specific test for all kinds of inventions. If an invention irrespective of its class is not novel, does not involve inventive step and cannot be used in or by an industry, thus such an invention is incapable of being patented.

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