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Written by : Everette Udley
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patentability of inventions in this lecture we will look at what can be patented and the acts tells us that for anything to be patented it has to qualify under the definition of an invention under the act that is section 2 1 j we will also see what are the inventions that are not patentable or the excluded subject matter the subject matter that has been excluded from patentability we will also look at that then we will look at the definition of invention and invention includes three things the invention has to be new the fact that it has to be new or novel it should involve an inventive step and it should be capable of industrial application so we will individually look at the three components of what constitutes a patentable invention novelty inventive step and utility or industrial application so looking at the definition of invention first we can see that the definition has three components and the definition itself qualifies an invention that is patentable now this is understood if you read the act nowhere does the act says that what is a patentable invention rather when the act refers to an invention it is understood that the act's concern is with regard to patentable inventions so inventions that are patentable are patentable inventions to use an alternative phrase refers to the fact that there are certain inventions which are patentable under the act which also means that they could be inventions which are beyond the scope of and patent under the act now this we refer to as the patentability of inventions or in to use the phrase in our syllabus patentability of inventions or simply patentability what can be patented patents can be granted only for an invention that pertains to a field of technology so the field of technology is very important because if there is no field of technology then a patent cannot be granted patents are technology specific in the sense that patents can only be granted for technological inventions though the patents act do not describe inventions as technological inventions it is understood that technology inventions are inventions that are made in a particular field of technology in fact the patent office is designed in a way in which they have group of examiners who have skills in a particular technology analyzing and examining patent applications that come from different fields the international patent classification which is a code that is used for classifying patents is again a technology-based classification so if you file in patent application in biotechnology then it will be examined by a group of examiners whereas if you file a patent application for a pharmaceutical draw it would be examined by a different set of examiners so patent law is technology specific and and you have uh you have not only experts within the patent office but also the attorneys who draft these patents would also have some amount of domain knowledge in pertaining to their particular field so inventions under the act can be granted for a new product or a process the invention should involve an inventive step and it should also be capable of industrial application now this is the definition of invention which is mentioned in section 2 1 j of the patents act so from this we can understand three things for anything to be an invention the fact that something has to be new is referred to in patent law as the novelty requirement something has to be novel or the novelty requirement the invention should also involve an inventive step now we'll explain inventive step in some detail soon and the invention should be capable of industrial application this is largely called the utility requirement inventive step is also called the non-obviousness requirement the fact that the invention should not be obvious to a person skilled india we'll be looking at these definitions in some detail so now what is important here is that invention has three requirements novelty inventive step and utility but for something to be an invention and for something to be captured as a patent the product or the invention should manifest itself in the form of a product or a process so that is why you have the new product or a process mentioned together so if the invention cannot be envisaged as a product or a process then a patent cannot be granted for instance somebody envisages an invention as an idea an abstract idea no product comes out of it no process of manufacturing or working it is described it just is an idea for instance somebody comes up with a bright idea of making a cycle that you could pedal to the moon now that remains an abstract concept it is not something that can be worked out it is not something that there can be a product on it but it's just an idea that you could cycle your way to the moon so abstract ideas cannot be patented patent should manifest itself on either a product or a process invention can also cover improvements to existing inventions so you have inventions which are new involved and inventive step and are capable of commercial industrial application the same yardstick can also be applied to improvements to existing inventions those improvements are new they involve an inventive step and they are capable of industrial application patentability refers to the ability of an invention to be granted a patent if an invention is not capable of being granted a patent then we would not call it a patentable invention they are normal inventions for an invention to be patentable it has to satisfy the requirements of an invention under the act what you saw under the earlier section section 21 j not only should it satisfy the requirements of an invention under section 2 1 j it should also get over the statutory exceptions so we call this as the positive and the negative thing the positive thing is that it has to show that the invention is new or it involves novelty it involves an inventive step and it is capable of industrial application or utility these are the positive things so when you file an application for a patent you have to show that these three things do exist apart from satisfying these requirement you should also ensure that your patent or your application does not fall within the statutory exceptions the statutory exceptions are detailed in section 3 and 4 of the patents act and the statutory exceptions are applied first some of the exceptions in section 3 and 4 are policy based some of them are domain based some of them are but exceptions which you can get over some of them are some of them are absolute exceptions we'll come to them in detail for instance section 4 is a bar on granting patents for anything that pertains to atomic energy so the indian law does not grant patents on things pertaining to atomic energy so that is a blanket ban so the statutory exceptions are applied first and once you get over the statutory the the filter of the statutory exceptions then you would be required to prove the positive requirements for instance novelty or whether the invention is new then you will have to demonstrate that your invention has an inventive step in us they call it the non-obviousness and the fact that the invention is
Thanks for your comment Cammy Kriticos, have a nice day.
- Everette Udley, Staff Member
say you've got a genius idea and you'd like to patent it the first thing you need to know is that you can't patent a mere idea your idea has to be able to be developed into a tangible product or process products are physical things like a machine a tool that has one or more moving parts and uses energy a manufactured item a product or part that is produced according to design or a composition of matter a newly synthesized chemical compound or molecule processes on the other hand our means to an end either a means of doing something new or a new way of doing something old there are other things you can't patent you can't patent a mathematical formula or law of nature and you can't patent natural phenomenon like electricity or light waves these all exist independently of human intervention and must be freely available to all humanity for its understanding and betterment but guess what you can patent a device that uses electromagnetism or light waves to communicate things get a little blurry though when it comes to computer software the Supreme Court has wrestled with this issue for more than 40 years and still hasn't resolved exactly when software is patentable computer algorithms alone can't be patented because they are mathematical formulas software may be patentable though if it employs those algorithms to produce a tangible result but what if you take some ordinary activity people have been doing for centuries and then simply do it through a computer no that won't get you a patent now even if you've got a patent eligible invention you still have to meet three criteria to get one novelty utility and non-obviousness novelty means that your invention must never have been previously patented described in a patent application written about disclosed to the public or offered for sale anywhere in the world it's got to be brand new but wait what if you invent a faster-than-light warp drive does the novelty bar mean you can't patent it because it was disclosed on the TV show Star Trek 50 years ago actually you can patent it because the TV show did not describe a warp drive in sufficient detail to enable someone skilled in the science of space propulsion to build it so take heart Star Trek fans the second criteria is utility which simply means that your invention must function as intended the Patent Office used to deny patents to hair regrowing products because they didn't work and therefore lacked utility but finally someone invented a composition that really did regrow hair on a bald scalp and patents have been issued for these products ever since the final criteria is non-obviousness whose meaning is well not exactly obvious this is where inventors face their biggest hurdle with patent examiner's say you invent a wheeled cart to move office supplies more easily between departments if this is the first such wheeled office cart in history you can get a patent for it but if you then decide hey why not put those wheels on a chair you won't get a patent for it that's because combining two such widely known and available elements would be obvious to anyone skilled in the art of office furniture design but things are not so obvious when it comes to inventing a camera phone even though it's composed of well-known and widely available components combining the two did satisfy the requirement for non-obvious nastain more than the sum of their parts and made a large and previously unfilled need in the marketplace remember a patentable invention doesn't have to be a huge revolutionary breakthrough in fact the best inventions are often the little things small advances that save people time money or hassle in their everyday lives so now that you know what's patentable what's holding you back
Thanks Devona your participation is very much appreciated
- Everette Udley
About the author
I've studied egyptian history at Mississippi State University in Mississippi State and I am an expert in metaphysics (outline). I usually feel gloomy. My previous job was social welfare administrator I held this position for 22 years, I love talking about metal detecting and walking. Huge fan of Yamiche Alcindor I practice golf and collect fossils.
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