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Understanding Section 3(d) of the Patent Act, 1970


Posted By Sarthak on 05 Aug 2017

Section 3(d) of the Patent Act, 1970 state that “…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.”

India introduced Section 3(d) as a part of series of amendments to the Patent Act, 1970, withregard to India’s international obligation on the signing of TRIPS. India being a signatory to the TRIPS agreement, was obligated to introduce an amendment and insert a legislature with this regard. Section 3(d) of the act is based upon similar provisions in the English Law. The 1977 Act (UK) deals with patent protect, Section 1 of the same contains provisions somewhat similar to the various sub-sections of Section 3 of the Indian Act.

Section 3(d) of the act, presuposses that there exists as on priority date a ‘known substance’, which means a substance which is publicly known and having proven efficacy as opposed to being known to the inventor or to the applicant. This basically means, this section shall apply only when prior to the innovation for which patent protection is seeked, existed a known substance.

As per Supreme Court in Norvartis AG Vs. Union Of India, prior to the grant of patent upon an innovation, that innovation needs to undergo certain test. In the words of the Apex court ‘It is clear that only where a new product (including inventive step) would the question arise of ascertaining whether patentability of such invention is further inhibited by Section 3’.

In simple words Section 3(d) of the Act, state that a substance/innovation would not be patentable if there exists prior to it a known substance with similar attributes. It lays down a minimum requirments as to grant of patent, that is a patent is granted only upon an innovation which is novelty in nature.

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