This article has been written by Ms. Samriddhi Vishen, a 2nd year LL.B. student of Shri Jai Narain Misra PG College (KKC), Lucknow.
In addition to the subject matter of the patent being novel and inventive, it also needs to be applicable in industry. While there are several court cases involving disagreements over whether a patent’s subject matter is novel or innovative, there are very few cases involving such disagreements. According to the Indian Patents Act of 1970, a subject matter must pass the listed triple test in order to be patentable:
- Novelty
- Inventive step
- Industrial Applicability
This article focuses on and attempts to explain the industrial applicability of Patent.
What is Industrial Applicability?
A patent can only be granted for an invention that is susceptible to industrial application, or for an invention that can be created or used in some form of industry, also known as industrial applicability or industrial application, under Indian patent law. The term “industry” has a broad definition in this context and encompasses things like agriculture. A contraceptive method that is intended to be used in a person’s private and personal life is an example of an invention that would not be amenable to industrial application.
According to Section 2(ac) of the Patents Act, industrial application means that “the invention is capable of being manufactured or utilized in an industry.” A product will be deemed to be industrially applicable if it can be produced repeatedly and has at least one application in a given industry. For a process to meet this requirement, an industry must be able to use it. Uses that are uncertain, hazy, futuristic, or non-specific are not regarded as legitimate uses. The same is true when a product or procedure is used in an insubstantial or not credible way.
A provision regarding “industrial application” is also found in Article 33 of the Patent Cooperation Treaty, which states that a claim must be technically feasible for use in any industry in order to qualify as “industrially applicable.” As in the Paris Convention, the term “industry” is used here in its broadest sense possible.
The phrase was first introduced in section 2(1)(ac) of the Patents (Amendment) Act (2002), which was inserted by India after it joined the treaty in 2001. A patent could only be granted for inventions that were “new and valuable” prior to this change. According to section 64(1)(g), one of the reasons for revoking a patent was for lack of utility, but as was demonstrated in Lakhapati Rai & Ors. v. Srikissen Dass & Ors., utility can also mean practicability rather than improvement. What it is claiming to do, the utility test is based on whether the invention will do it or not.
Under the Patent Law in India earlier, utility being the main requirement of patentability, the court described it as an invention that betters the industry’s preceding knowledge about a particular invention (Young and Neilson v. Rosenthal & Co.)
The court in Young and Neilson v. Rosenthal & Co. defined that an invention that advances the prior knowledge of the industry regarding a particular invention (being the earlier version) is the one of the primary condition for patentability under the Indian Patent Law.
Though the invention for which an application is made is not in its final form, the patent can only be granted in cases where there is some commercial viability to the same, according to the court’s explanation of the term in the F. Hoffman-La Roche case, which stated that the requirement necessitates an invention to have commercial use. As a result, this implies that more emphasis is on the potential than the actual product—it must be commercially viable.
International Perspective
There are other jurisdictions as well that state industrial applicability is a requirement for an invention to be patentable, namely:
Japan: If an invention has industrial applicability and is novel, its inventor is authorised to apply for a patent under article 29(1) of the Patent Act. This is especially true for inventions involving genes, organisms and chemicals, and the specific application of such ideas needs to be stated. Agriculture, mining, commerce, and services can all be included in the definition of the industry. Even though some medical treatments may be eligible for patent protection, medicinal and industrial use are still not recognised in Japan.
Europe: An invention must be capable of industrial application in accordance with article 56 of the European Patent Convention, which is interpreted to mean that it can be produced or used in any industry, including agriculture. Unless there is a financially advantageous usage that goes along with it, the sheer use of a material in a certain method does not justify its industrial application. Any invention that deviates from the principles of physics is equally invalid.
USA: One of the fundamental conditions for an invention to be patentable in the United States is a utility, or that the patent is being applied for a “useful invention.” If the inventor fails to demonstrate the invention’s usefulness in the application or does not provide sufficient details to do so, or in the extremely unlikely event that the utility as described in the application is not credible, the invention will not be useful. The United States law employs “practical utility” instead of “industrial application,” but it serves the same purpose.
A nearly universally accepted need for an invention to meet in order to qualify for patent protection is its capability. This is the case because incomplete or abstract concepts cannot be granted a patent, nor can they be provided the innovation incentives that the patent attempts to generate. If a patented invention offers any benefits, it must be made sure that those benefits are granted to the appropriate individuals and inventions.
Case Laws
- The Delhi High Court held that an invention must be economically feasible in a case involving Cipla and Roche after reviewing various Indian and international cases pertaining to the utility or industrial application criteria. Commercial use is required, although commercial success need not be demonstrated. Fundamentally, the invention must serve the function stated in the patent specification and have a practical application. Nothing more will be necessary to demonstrate an invention’s utility for patentability.
- The Delhi High Court used criteria for industrial applicability established by the UK Court of Appeals in another case involving MSD and Glenmark to determine that the medicinal ingredient Sitagliptin is applicable in the industrial sector. The Court cited the following guidelines:
i) In order for the resulting monopoly to “can be expected [to lead to] some… commercial benefit,” the patent must reveal “a practical application” and “some profitable usage” for the claimed material;
ii) The invention’s “use in industrial practise,” which is a “concrete benefit,” must be “derivable directly from the description,” in addition to being widely known;
iii) A purely “speculative” usage is insufficient; so, “a vague and speculative hint of conceivable objectives that might or might not be achievable” is insufficient;
iv) The claimed invention must be reproducible or exploitable by the trained person without “undue burden” or the need to conduct “a research programme,” according to the patent and general knowledge;
The Court reached the following conclusion by using the aforementioned principles: Sitagliptin is industrially applicable even though it cannot be used in practise because of an ineffective carrier.
- Further, the court stated in the case of Boehringer Ingelheim Pharma vs. MSN Laboratories and others that, even though the subject matter of a patent is still in the conceptual stage and may not be commercially viable at that point, it is nonetheless useful and industrially applicable in cases of breakthrough research. If an invention is used in accordance with the whole specification’s disclosure yet produces different outcomes, the patent might be deemed to lack industrial application.
Conclusion
Thus, if an invention may be produced or used in any industry, including agriculture, it is considered to be capable of industrial application. Only if an invention is industrially useful can it be protected by a patent.
References
https://www.lexology.com/library/detail.aspx?g=b96b429f-8c4d-459b-9efb-35f7e69c82dd
https://ssrana.in/ip-laws/patents/
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