ABSTRACT
The concept of novelty is a fundamental requirement in patent law within the framework of Intellectual Property Rights (IPR). Although the term is not explicitly defined in statute, it generally refers to the newness of an invention and ensures that only inventions that have not been previously disclosed to the public are granted patent protection. In India, the Indian Patents Act, 1970 governs the grant of patents and establishes three essential criteria for patentability: novelty, inventive step, and industrial applicability.
Among these, novelty is considered the sine qua non of patent protection, as it determines whether an invention is truly new and eligible for legal protection. This article examines the concept of novelty as a crucial criterion for the grant of patents.
INTRODUCTION
Patents are an important form of Intellectual Property Right that provide legal protection for new inventions, including products or processes. In general, a patent refers to an invention of a new product or process that involves an inventive step and is capable of industrial application. Patents encourage innovation by allowing inventors to benefit from their creations and secure investment for further research and development.
By obtaining a patent, an inventor gains exclusive rights to prevent others from manufacturing, using, or selling the invention without permission. These exclusive rights enable inventors to negotiate favourable licensing terms and gain a competitive advantage in the market. A patent grants such rights for a defined period, usually 20 years from the filing date, subject to payment of renewal fees.
To obtain a patent, an invention must satisfy three essential criteria: Novelty, Inventive Step, and Industrial Applicability. Novelty is a fundamental requirement across major patent systems, including India, meaning the invention must be new and not previously known to the public.
Patents relating to living matter are often referred to as bio-patents. In India, however, plants and animals (except microorganisms) are excluded from patentability under Section 3(j) of the Patents Act, 1970. The extent to which living matter can be patented varies across countries.
In the United States, purified and isolated biological materials may be patentable if they meet the legal requirements of patentability. Similarly, in the European Union, biological material isolated from its natural environment or produced through technical processes may qualify as patentable subject matter.
NOVELTY AS A CRITERIA OF PATENTABILITY
INDIA
As per the Indian Patent Act, 1970, a patent cannot be granted merely on the ground of a new form being formed of a known substance or on the ground that a new use has been discovered of a known substance. India has signed the TRIPS Agreement, which requires a patent to satisfy the standards of novelty as criteria of patentability, non-obviousness, and industrial applicability to be considered an invention.
The primary goal of patent law is to encourage scientific exploration, technological growth, and industrial advancement by granting the inventor exclusive privileges.
However, a patent cannot be granted for mere discoveries or ideas that do not have technical contributions or aspects. It is well known in the patent statute that the mere idea is not patentable rather its application. Under the Patent Act in India, India does not provide a general grace period like the U.S. It only allows limited exceptions, allowing the invention to be described or published before an association of experts without losing the novelty requirement.
UNITED STATES
In the U.S., the novelty requirement for a patent means that something like that should not have anything identical to it or something similar should not be found with the latest technology.
However, the most advanced technology may often come from the inventor or the owner himself, which can happen inadvertently, as presentations and suggestions that are considered to be available only to a limited audience may be published online by various host organizations.
In the United States, the patents are granted one year grace period after publication by the inventor, during which the patents can be applied for. One year later, if this disclosure is made by the inventor, the public disclosure may be used to reject novelty or obviousness.
The Graham v. John Deere Co. case established guidelines for determining the non-obviousness of an invention in the U.S., considering the scope and content of prior art, the difference between the prior art and the disputed claims, and the level of an average person skilled in the related technology.
UNITED KINGDOM
In the U.K., inventions must be novel to be patented. In the U.K. and most other countries, there are fairly stringent criteria for assessing novelty. Any disclosure made before the application’s priority date, whether in writing or not, may be detrimental to the patent application.
Therefore, it is crucial to maintain the confidentiality of the invention before filing the patent application. However, in some cases, an invention may still be patentable even if it appears to have been disclosed before.
SIMILARITIES IN THE PATENT LAWS IN INDIA, THE USA AND THE UK
In all the three jurisdictions i.e. in India, the US and the UK, an invention must be patented when it fulfils the three essential conditions which includes ‘Novelty’, ‘Inventive Step’ and ‘Industrial Applicability’. According to the novelty, an invention must be new and not previously known or published anywhere in the world.
Non-Obviousness states that it must not be obvious to a “person skilled in the art”. Utility states that the invention must have a practical application or be capable of being made or used in an industry.
According to the TRIPS Agreement, all three jurisdictions grant a patent for a standard term of 20 years from the date of filing. Patent holders in India, the USA, and the UK must pay periodic maintenance or renewal fees to keep the patent in force for its full duration.
With the establishment of the America Invents Act, 2013, the US along with India and the UK, started following the first to file principle which states that the patent is granted to the person who first submits the application, regardless of who invented it first.
All the three countries are members of the Patent Cooperation Treaty (PCT), allowing inventors to seek protection in multiple countries simultaneously through a single international application.
DISIMILARITIES IN THE PATENT LAWS IN INDIA, THE USA AND THE UK
In the U.K. and India, the first person to file a patent application is considered the inventor and is given priority, regardless of whether someone else invents the same thing before them. However, in the U.S., until 2013, the first inventor is given priority even if they were not the first to file a patent application later it changed to First Inventor to File after the America Invents Act (AIA).
In the U.S., if two or more applications are filed for the same invention, an “interference” proceeding is initiated to determine who is the first inventor and entitled to the patent. Although most offices around the world operate on a “first to file” system, the U.S. operates on a “first to invent” system.
The USA offers a one-year grace period, allowing an inventor to publicly disclose their invention up to 12 months before filing without losing novelty. Whereas, in India & UK absolute novelty follow . Any public disclosure before filing usually destroys patentability.
The main dissimilarity between the UK, the US and the Indian patent system is related to the business methods patents. In the UK or other European countries, European Patent Convention (EPC) Article 52, business methods are not patentable as such.
In the US, the business method patents are granted as long as they are just an implementation of a known business process. In India, the business method patents are generally not patentable, but it can be patented if the new method is pointed at solving technical problems and is systematic in nature.
CONCLUSION
Summarily it can be said that novelty is a key factor of granting a patent within the Patent Act. The novelty factor must be read lucidly with other factors while granting a patent. Also, it must be noted that a product cannot be granted patent only on the ground of a new form being formed of a known substance or on the ground that new use has been discovered of a known substance.
A product must be made entirely new and with new process rather than the existing processes. It has been also held that after the analysis of the patent regulations in the United States, India, and the United Kingdom, it can be deduced that the patent application procedure in India is comparable to that of the U.K. but distinct from the process in the USA.
Overall, it is essential to harmonize these laws across different countries to address any errors, discrepancies, or loopholes that may exist in specific areas of the law. This is a crucial step towards increasing the profits of inventors worldwide.
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