Obtaining a Granted or Registered Patent for an Invention is a difficult undertaking. For appraising an invention, each country has its own set of rules and regulations. To obtain a Registered Patent, the applied Patent application must meet certain criteria. One of these is the Invention’s novelty requirement. Every country, more or less, has at least one Novelty criterion for Invention. As a result, the innovation must be novel in comparison to what is currently in the public domain.
Novelty indicates that an invention must be novel in comparison to previously revealed knowledge in the public domain. According to Indian Patent Law, any invention or technology that has not been predicted by prior publication in any document or used in the country or anywhere in the world before the date of filing of the Patent application is deemed novel subject matter. This means that the subject matter should not be divulged, enter the public domain, or be formed as part of the state of the art.
Novelty in India Aspects
According to the Patent Act of 1970, a product cannot be patented in India simply because a new form of a known substance has been developed or a new use for a known chemical has been discovered. India is one of the member countries that has signed the TRIPS Agreement and is a party to this Agreement; under Article 27 of this Agreement, a patent will be granted for any invention in any technology field, whether product or process, and a proviso has been added that the invention must be novel, have an inventive step, and have an industrial application. So, in India, these are the three requirements or tests that need to be passed to qualify an invention as an invention.
The right awarded to a person who invents or discovers a composition of a new and useful procedure, article, product, or material, or a new and useful improvement thereof, is referred to as a patent. The goal of instituting patent law is to assist the development of new technologies, scientific research, and industrial operations. An inventive step is defined as an invention if it significantly improves a product. According to the 1970 Patent Act, patents are issued not just for “new inventions,” but also for “inventions” that demonstrate an inventive step in an invention.
It is frequently stated that we must distinguish between invention and discovery. However, there are patent law concepts that state that simple discoveries or fresh ideas do not create a product novel and innovative, and so they are not patentable. A product, on the other hand, is considered to be patentable if the discoveries contain technical contributions or technical features.
It is well knowledge that simple ideas do not qualify for patent protection. The rules of patent law state that ideas and discoveries cannot be patented in this manner. It does not constitute cutting-edge technology or technique. Patentability is only obtained by the practical application of ideas and discoveries.
The practical application of the finding, if any, is patentable, as is typically the case. The capacity to communicate how findings and ideas might be used meaningfully can lead to patented innovations. Its actual use is not grounds for exclusion under Section 3 of the Patent Act.
Anticipation is a phrase used to describe a lack of novelty, which is determined by elements such as earlier publications, commercialised items, published names and usages, and selected creations. The term anticipation is not defined in the Patent Act, however, there are provisions (S. 29 to 34) that assist us in determining what anticipation is not. If the prior art is included in the anticipation test, the claim is made if the prior art research allows the claimed invention to be used. Prior art assessment may not need to be replicated, but expert opinion may be used to help define expectations. What is displayed as a result of what is stated in the previous art, whether it is a product or process within the claims, can also identify predictable results.
In India, when determining whether a patent application is anticipated or not, the authority will consider whether the invention presented to them is disclosed in a patent or whether any other document published before applying is published or not. If it proves that it was present, the patent will be denied; otherwise, it will be granted. When an inventor seeks a patent as one right that he can utilise when a publication-related innovation is published without his authorization and he is able to establish it, it cannot be stated that the application is anticipated.
In case Lallubhai Chakubhai Jariwala v Chimanlal Chunilal and Co the court observed that:
“the two features necessary to the validity of a patent are novelty and utility, but the real test is the novelty of the invention. Novelty is essential, for otherwise there would be no benefit given to the public and consequently no consideration moving from the patentee [while interpreting the factor related to public knowledge and public use.]”
The court further held as follows:
“The next question is, whether the plaintiff’s invention has been anticipated by a prior public user. Has it been publicly used by the plaintiff and/or by others before the date of the application? Public user does not mean a user or exercise of the invention by the public, but a user or exercise in a public manner, and it is in every case a question of fact. If the invention is being put into practice before and at the date of the grant, the grant will not be for a new invention or manufacture, and this applies equally whether the invention is being practised by the patentee himself or by other uses of the invention for the purposes of trade may constitute a prior user which invalidates the patent, and it has been held that the prior public sale of goods or articles treated according to the invention is a public user of the invention, for the sale is strong evidence that the user was really commercial and not experimental.“
We can see from the Lallubhai decision that novelty is an important criterion in establishing patent eligibility because it is unknown and underused information that offers the inventor a competitive advantage.
The Patent Act allows a one-year grace period for patent applications in the case of prior disclosure by the inventor of the invention is described in front of an association of experts or published in the business of such an association of experts. The grace time can also be used to undertake necessary investigations, such as gathering data for regulatory approval. If the invention is commercially marketed or processed in India, it is not available.
However, in India, the use or publication of the invention following the filing of a provisional patent application is not deemed anticipatory. The following grounds will be taken into account as key considerations when determining novelty: public working, public presentation, and traditional knowledge, as specified in Sections 32, 31, and 3 (p), respectively. Knowledge in local or indigenous societies in India or elsewhere can also lead to verbal or nonverbal inventions.
Reference
Patent Act, 1970
Novelty: An Indian Perspective, by Pankaj Musyuni
https://www.mondaq.com/india/patent/655226/novelty-an-indian-perspective
https://ipexcel.com/in/what-is-novelty-of-an-invention.html
https://www.hkindia.com/news_letter/article/1/Patent%20artile-1.html
Lallubhai Chakubhai Jariwala v Chimanlal Chunilal and Co
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