Disha Mohanty & Satvik Mishra discusses the concept of Novelty as a criteria for patentability through a comparative analysis.

INTRODUCTION TO NOVELTY

Novelty refers to any original or unfamiliar material and places the owner of such material at a higher pedestal than the competitors.[1] In layman’s words, any development will be viewed as a novel only if it doesn’t shape state of the art. 

The Indian Patent Act[2] doesn’t characterize “state of the art.” Over the years, through various case laws, it has been established that if an innovator’s work which has already been put forth in the public domain, is similar to another patentee’s work, then the latter’s novelty is revoked.[3] This essentially means that any innovation will not be considered novel if it has been made available to the public through verbal, written, or any other means before the date of documenting the patent application.[4] The amount of information available in the public domain isn’t limited to the information provided by the creator only.

But, in case the innovation is even the best in a particular field, a patent can’t be granted to it for the same. In this case, the materials previously filed in various patent reports and had a prior date of documentation but not made accessible to the public shall be considered the best in class.

SYSTEM OF PATENT IN INDIA

As far as India is concerned, a patent application is viewed as an invention if the development is revealed in a patent or whatever other records are distributed before the date of the application.[5] Notwithstanding, if the innovator demonstrates that the issue distributed was obtained falsely and was distributed without their assent, at that point, it may not be viewed as unique.[6]

In the case of Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co[7], the Court pronounced that even though the two most essential components of a patent are novelty and utility, the innovation’s uniqueness is the actual test of the patent.

While determining the novelty of any innovation, the grounds of public display, public working, and traditional knowledge form major judging parameters.[8] Likewise, any sort of innovation can be foreseen due to the existence of information that exists in any form, in India or anywhere else.[9]

SYSTEM OF PATENT IN THE U.S.

In the United States, to meet the litmus test of patentability, the innovative idea must fulfill a three-pronged trial of uniqueness, non-conspicuousness, and utility.[10] Additionally, the creation must not have been out in the open use or deal in the U.S. for over one year before documenting the patent application. The U.S. patent resolution expresses that development is regarded as self-evident if the distinction between the subject matter trying to be protected and the earlier workmanship is with the end goal that the subject would have been clear to an individual having common aptitude in the art to which the subject relates.[11] The “utility” prerequisite is most likely the simplest measures to meet as essentially any helpfulness is considered to meet the “utility” necessity.

A patent shouldn’t be obvious, and it should include a creative advance in the case of Gragham v. John Deree Co.[12], the U.S. Supreme Court set out specific factors to be considered to see if the innovation was evident or not.

I) Degree and substance of the earlier craftsmanship, 

ii) The distinction between the earlier workmanship and cases at issue and,

iii) The degree of normal ability in the relevant workmanship. 

Further, the courts may use additional grounds such as business achievements. These necessities have been felt over some time but couldn’t be taken care of, etc., to judge the innovation.

In the past thirty-five years, due to the issuance of several low-quality licenses, the number of documented licenses has gone up.[13] To keep a check on this, there is a provision for Post-grant Review (PGR) under the America Invents Act, which allows any person to demand the revaluation of issued licenses.[14]

COMPARATIVE ANALYSIS

The patent frameworks of India, the US, and the U.K. appear to be generously similar. They all reward innovators with specific rights for a fixed timeframe in return for their revelation in regards to the technique for creating the development.[15] Besides, their way of dealing with patentability, outcomes, and its essential job in empowering advancement are significantly comparable despite a couple of local contrasts.[16] Even then, this doesn’t delineate the genuine picture concerning worldwide patentability completely.  

After looking at the patent law in the U.S. and India, the latter is less expensive, generally less tedious, and progressively solid because of the nonappearance of the association of a jury in the dynamic procedure. Furthermore, similar to India, the U.K. patent framework is a first-to-record framework dissimilar to that of the U.S., a first-to-invent framework.

In the U.S., the business strategy patents are allowed only if the business process stands out in the field or is proved to be extremely significant.[17] However, in India, in most cases, it’s not possible to patent business techniques unless the innovation deals with some specialized issues and is specifically created for that purpose.[18] 

The arrangement of novelty under the Indian legal framework and that of the United States are not the same. While the ‘first-to-develop’ system followed by the U.S. decides novelty taking into consideration the date of such innovation, the ‘first-to-record’ system followed in India demarcates an invention to be a novel based on the date on which the initial application for patent is made.[19]

CONCLUSION

The problem that arises concerning the territorial restrictions of patents can be resolved by creating uniform worldwide standards for patents. However, because of the failure of such a method, a need for a relative investigation to bring about a common legal framework about patents arises. 

The dissimilarity in procedural and somewhat the considerable patent guidelines and laws in various nations likewise impact the innovator’s rights. Anyway, the other side, whenever broke down, uncovers that a couple of corporate monsters have exploited such and along these lines, protected in not many nations to abuse their item commercially.

Therefore, the primary concern remains is to come up with a uniform system of the patent framework to work on the defects, loopholes, and other shortcomings associated with various law zones.


Disha Mohanty is a student of National Law University and Judicial Academy, Assam & Satvik Mishra is a student of Rajiv Gandhi National University of Law, Punjab.


[1]S. S. Rana & Co. Advocates, Understanding Novelty for Invention to be Patentable, Mondaq (Mar. 26, 2019), https://www.mondaq.com/india/Intellectual-Property/792726/Understanding-Novelty-For-Invention-To-Be-Patentable.

[2]The Patents Act, 1970, No. 39, Acts of Parliament, 1970 (India).

[3]Supra note 1.

[4]Jaya Bhatnagar & Vidisha Garg, Patent Law in India, Mondaq (Dec. 13, 2007), https://www.mondaq.com/india/patent/54494/patent-law-in-india

[5]Supra note 2, § 2(1)(I).

[6]Frequently asked questions: Patents, World Intellectual Property Organisation (Jun. 16, 2020), https://www.wipo.int/patents/en/faq_patents.html.

[7]Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co., (1935) 37 BomLR 665 (India).

[8]Pankaj Musyuni, Novelty: An Indian Perspective, Mondaq (Dec. 18, 2017), https://www.mondaq.com/india/patent/655226/novelty-an-indian-perspective.

[9]Id.

[10]General Information concerning Patents, United States Patent and Trademark Office (Jun. 15, 2020), https://www.uspto.gov/patents-getting-started/general-information-concerning-patents.

[11]Id.

[12]Gragham v. John Deree Co., 383 U.S. 1 (USSC 1966).

[13]Stephen Merrill et al., A Patent System for the 21st Century 47 (National Academic Press ed., 2004). 

[14]America Invents Act, 35 U.S. C § 282 (2012).

[15]History of the Indian Patent System, Intellectual Property India (Jun. 15, 2019), http://www.ipindia.nic.in/history-of-indian-patent-system.htm.

[16]Supra note 4.

[17]Brette Sember, What a Business Method Patent is, Legal Zoom (Sep. 2018), https://www.legalzoom.com/articles/what-a-business-method-patent-is.

[18]Id

[19]Patent, Trademark and Trade Secret, Find Law (Jun. 8, 2017), https://corporate.findlaw.com/intellectual-property/patent-trademark-and-trade-secret.html.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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