Invention

Section 2(1)(j) of the Patents Act, 1970 defines an invention as a new product or process involving an inventive step and capable of industrial application. This gives the three tests of patentability: novelty, inventive step and industrial applicability. A further negative test comes from Section 3, which lists what are not inventions, and Section 4, which bars patents for inventions relating to atomic energy.

Each test is defined. Novelty is reflected in Section 2(1)(l): a new invention is one not anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing with complete specification, so that it is not in the public domain or part of the state of the art. Inventive step under Section 2(1)(ja) is a feature that involves technical advance as compared to existing knowledge, or economic significance, or both, and that makes the invention not obvious to a person skilled in the art. Capable of industrial application under Section 2(1)(ac) means capable of being made or used in an industry.

Section 3 then excludes items even if they might otherwise qualify, including frivolous inventions contrary to natural laws, inventions contrary to public order or morality, mere discoveries of scientific principles, methods of agriculture or horticulture, methods of treatment of humans or animals, a mathematical or business method or a computer programme per se or algorithms, and literary, dramatic, musical or artistic works. Section 3(d) excludes the mere discovery of a new form of a known substance that does not enhance its known efficacy, and its Explanation treats salts, esters, polymorphs, isomers and similar derivatives as the same substance unless they differ significantly in efficacy.

In Novartis AG v. Union of India (2013) the Supreme Court refused a patent for the beta crystalline form of imatinib mesylate, holding that the compound was already known and that, for a medicine, efficacy under Section 3(d) means therapeutic efficacy. A patent once granted lasts twenty years from the date of filing under Section 53. Examiners test the three elements, the either or both wording of inventive step, the computer programme per se exclusion and Section 3(d).