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What can be Patented?

A patent grants the exclusive right to exploit an invention economically for a limited period (20 years in most countries). The grant of patent excludes others from making, selling, or importing the patented product producing for those purposes. A patent is a territorial right – that is, the right to exclude others from making the same product is only applicable in the country where the entity has a patent, and not in other jurisdictions. Hence, businesses which sell their products internationally usually file patent applications in multiple nations.

A patent can only be obtained in respect of products and processes, not with respect to services. In order to obtain a patent, the entire invention must be publicly disclosed. In order to be patentable, an invention must meet the three requirements of novelty, inventive step and industrial application, which are briefly explained below:
  • Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India. If the invention has already been published in the form of a paper in a journal then it cannot be patented.Due to this requirement, until the idea for a patent can be entirely implemented, it is kept in secrecy and inventors are discouraged from disclosing it (except where the disclosure is under an obligation of confidentiality). For example, a technological device for wireless communication cannot be considered as ‘new’ articles relating to it have been published in a journal, newspaper or similar source.
In order to determine whether a particular invention meets the requirement of novelty, a patent authority usually conducts a ‘prior art’ search using various searching tools to find what kind of products existed in the relevant area or sector to which the invention pertains.
  • Non-obviousness: The invention has to be ‘non-obvious’. Non-obviousness merely implies that a person who is ordinarily skilled in the concerned field would not have naturally or obviously come up with the invention, if he had access to all the prior information that existed in that field before the invention was created. This is a qualitative assessment, and there is an amount of discretion and subjectivity associated with any decision on whether a particular invention is obvious or not.
For example, if an electronics manufacturer makes an LCD using a new kind of technology for the first time (say, the first 3D television), it could still be refused a patent (even though it is new), if it can be concluded that this would have been obvious to a person ordinarily skilled in the relevant art.
The drafting of a patent application can significantly help in the way it is understood, and the perspective it casts on the prior art, and the degree or extent of novelty that it is able to disclose. For this reason, inventors spend a lot of money in engaging qualified patent counsels. 
  • Industrial application: Industrial application merely means that an invention should possess some kind of practical utility, so that it can be used in real-life – it should not be something which is abstract or merely theoretical and which cannot be applied.
Further, there are certain categories of subject matter which are not patentable as per the Patents Act, 1970 in India. Briefly speaking, discovery of a scientific principle (e.g. the special theory of relativity), plants and animals (except microorganisms in certain cases), mathematical processes, business methods or computer softwares, or even new forms of known substances (unless they result in increased therapeutical or other form of effectiveness) are not patentable. The complete list of subject matter classified as non-patentable under the Patents Act is provided in Annex 3.

A patent is territorial in nature and a patent obtained in one country is not enforceable in other country. Therefore, an applicant who seeks to obtain patent protection must observe a specific procedure (discussed below under steps to obtain a patent).

Unfortunately, patent prosecution, that is, drafting a patent application and pursuing it until the patent is acquired is a very expensive process and is time-consuming. Patent attorneys can charge very high fees depending on the type of the invention and the industry (e.g. electronics, biotechnology, pharmaceuticals, etc.) in which patent is claimed. Patent offices sometimes suffer from a backlog of applications, and acquiring a patent can easily take around 3-5 years or even longer (for example Amazon’s application in the US for a business method patent called ‘One Click’ took 13 years), in case there has been opposition.

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