The Doctrine Of Obviousness In India

Obviousness is a noun, derived from phrase apparent which means simply seen, recognised or understood. The phrase apparent has originated from the Latin phrase “apparent” which means “in the best way”.

To interpret the doctrine of obviousness it’s essential to first perceive the target of grant of Patent.

Object of grant of patent is to encourage scientific analysis, new know-how and industrial progress and for that object unique privilege is granted. On the similar time earlier than awarding patent for any invention it needs to be thought-about that the invention should be novel, should contain an creative step and will need to have industrial utility. These necessities are to be strictly adopted earlier than a patent may very well be granted for any invention in any nation all around the world.

A. Obviousness beneath 1970 Act

Solely a floor beneath opposition that too after grant and Revocation of Patents

The invention was outlined beneath Part 2(1) (j) the Indian Patents Act, 1970;

(j) “invention” means any new and useful-art, course of, methodology or method of manufacture; machine, equipment and different article; substance produced by manufacture, and contains any new and helpful enchancment of any of them, and an alleged invention.

As creative step was not outlined in an invention, there was no such provision throughout examination.

Solely after commercial of acceptance of full specification inside 4+1 months, beneath Part 25(1) (e) not having the creative step is a floor for opposition.

(e) that the invention as far as claimed in any declare of the whole specification is clear and clearly doesn’t contain any creative step, having regard to the matter revealed as talked about in clause (b) or having regard to what was utilized in India earlier than the precedence date of the applicant’s declare;

Absence of creative steps can also be a floor for revocation beneath Part 64 (1) (f) of the Patents Act:-

(f) that the invention as far as claimed in any declare of the whole specification is clear and clearly doesn’t contain any creative step, having regard to what was publicly recognized or publicly utilized in India or what was revealed in India or elsewhere earlier than the precedence date of the declare;

Due to this fact beneath the 1970 Act onus that the invention doesn’t contain any creative step was on the particular person .

B. Below the Patent Modification Act in 2003 (that got here into impact on 20.05.2003)

No change within the definition of invention until 2003

Definition of invention modified (Part 2(1) (j) now the “invention” means a brand new product and course of involving an creative step and able to industrial utility.

After which the creative step was additionally thought-about in the course of the examination.

And the Creative step was outlined beneath Part 2 (1)(ja) of the Patents Act

“creative step” means a function that makes the invention not apparent to an individual expert within the artwork”.

C. Additional beneath the Patent Modification Act, 2005 (which got here into impact retrospectively 01.01.2005)

The Definition of Creative step was additional revised.

Now beneath Part 2(1)(ja) the “creative step” means a function of an invention that contain technical advance as in comparison with the present data or having financial significance or each and that makes the invention not apparent to an individual expert within the artwork.

Even the official handbook of the Indian Patent observe acknowledges that “definition of creative step has been enlarges to incorporate financial significance of the invention other than already present standards for figuring out creative step”.

However the expression “or” denotes that financial significance needs to be given comparable significance as to technical development and each should interpreted when it comes to data and ability of the particular person expert in artwork. Additional it’s obvious from the intention of the legislature that both the financial significance or technical development needs to be current for qualifying the invention beneath the creative step.

D. Strategy of Indian Patent Workplace

  1. Considers novelty and creative step as one or the identical factor.

    The Indian Patent Workplace thought-about the novelty and creative step on the identical strains which displays within the examination report issued by them.

  2. Provides significance even to “A” class citations within the ISR/IPER for building of Creative step.

In a mechanical method the Patent Workplace provides significance to even ‘A’ class citations and requires elaboration and distinction when it comes to creative steps as regards to such cited arts.

  1. Requires characterization within the claims-

It has develop into the observe of the Indian Patent Workplace to require characterization clause in the principle declare for willpower of the creative step. Whereby claims incorporates two portion one pre characterization one publish characterization, the publish characterization portion in thought-about to contain creative step over pre characterization portion and thereon the dependent claims additionally relate to solely publish characterization portion.

  1. As per the Guide of Indian Patent observe: The creative step needs to be decided within the following method.

Needs to be non-obvious in comparison with the state of artwork,

Way of thinking (Flash of Genius) is to be regarded into, the next query needs to be borne into thoughts “would a non-inventive thoughts have considered the alleged invention?” if reply is “no”, then the invention in non-obvious. (In different phrases whether or not the invention would have occurred to an individual expert within the artwork, if sure, then it’s apparent.)

  1. Whether or not the invention entails train of any ability or capability past than what is predicted of an individual expert within the artwork. Combining the instructing of paperwork (Mosaics) with the artwork.

Though as per the handbook of Patent observe for consideration and willpower of the creative step, the invention needs to be regarded as an entire and no conclusion must be made by taking particular person elements of the claims that may be recognized or discovered to be apparent, however nonetheless the observe differs from the handbook and with out taking regard to complete claims/ invention, objections are raised and the Applicant is made to himself level out the creative step within the invention.

Conclusion:

Broadly the interpretation of obviousness or lack on creative step is comparable all around the world, the one distinction in strategy of the actual Patent workplace. In India lack of any judgment by the Supreme Court docket of India on the subject material leaves the interpretation of obviousness to observe of Indian patent workplace. In absence of authorities the interpretation varies from Examiner to Examiner and entails use of discretionary energy.


Supply by Sudhir Aswal

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