Inventive step
Also called: Non-obviousness
Under Section 2(1)(ja) of the Patents Act, 1970, a feature of an invention involving technical advance over existing knowledge or economic significance or both, which makes it not obvious to a person skilled in the art.
Explained
Section 2(1)(ja) of the Patents Act, 1970 defines inventive step as a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. It is one of the three tests in the definition of invention in Section 2(1)(j): a new product or process involving an inventive step and capable of industrial application.
The definition has two parts that must both be met. First, the feature must involve technical advance, or economic significance, or both; the word "or" makes either enough. Second, the feature must make the invention not obvious to a person skilled in the art. Technical advance or economic significance without non-obviousness does not suffice.
Inventive step is distinct from novelty. Novelty, reflected in the definition of new invention in Section 2(1)(l), asks whether the invention was anticipated by prior publication or use. Inventive step asks whether, even if new, it would have been obvious. Lack of inventive step is a ground of pre-grant and post-grant opposition under Section 25 and of revocation under Section 64.
Section 3 operates as a further filter. Under Section 3(d), the mere discovery of a new form of a known substance which does not result in enhancement of its known efficacy is not an invention. In Novartis AG v. Union of India (2013), the Supreme Court treated Section 3(d) as a second tier of qualifying standards for pharmaceutical substances, held the beta crystalline form of Imatinib Mesylate a new form of a known substance without enhanced therapeutic efficacy, and found it unnecessary to decide inventive step. Examiners test the either or structure of the first limb and the relation with novelty and Section 3(d).
What the law says
[(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;]]
Clauses (j), (ja) and (l) define invention, inventive step and new invention
The following are not inventions within the meaning of this Act,—
(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
[(b) an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;]
What are not inventions, including clause (d)
(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the applicant’s claim;
(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act;
(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;
Opposition for lack of inventive step
(f) that the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim:
* * * * *
(g) that the invention, so far as claimed in any claim of the complete specification, is not useful;
Revocation for lack of inventive step
For the exam
- Section 2(1)(ja): technical advance or economic significance or both, plus non-obviousness.
- Invention under Section 2(1)(j): new, inventive step, capable of industrial application.
- Novelty and inventive step are separate tests.
- Lack of inventive step is a ground of opposition (Section 25) and revocation (Section 64).
- Section 3(d) is an additional hurdle for new forms of known substances (Novartis, 2013).
5 questions in the Law Maker question bank use this term. Practise Intellectual Property Law questions
Judgments
Related terms
- InventionUnder Section 2(1)(j) of the Patents Act, 1970, a new product or process involving an inventive step and capable of industrial application.
- Trade markUnder Section 2(1)(zb) of the Trade Marks Act, 1999, a mark capable of graphical representation and of distinguishing one person's goods or services from others'.
- Sui generisOf its own kind. Describes something unique that does not fit any existing legal category and must be understood on its own terms.
Further reading
Checked 6 November 2026. Statutory text is quoted from the Bare Acts library, taken from India Code. See the full glossary.