Introduction
Patents are among the most essential tools in India’s intellectual property framework. The Patent Regime encourages innovation by granting inventors exclusive rights in return for disclosing their ideas to the public.
In India, the Patents Act, 1970 (“Patents Act”) governs patents, which lays down clear grounds of patentability that every invention must satisfy before it can be granted protection. For businesses, start-ups, in-house counsel and legal academicians, understanding these tests is essential not only to obtain a patent but also to defend it, if challenged.
What Is Patentability?
In simple terms, patentability refers to the substantive legal conditions that an invention must meet to qualify for a patent grant. Under Indian law, the idea of patentability combines the statutory definitions of invention and new invention with the familiar criteria of Novelty, inventive step and industrial application, along with specific statutory exclusions.
The Patents Act defines an invention as a new product or new process involving an inventive step and capable of industrial application. A new invention is one that has not been anticipated by prior art anywhere in the world before the filing date and is not part of the public domain. In Practice, this means that even a single initial public disclosure may be sufficient to defeat patentability, a point our courts have repeatedly emphasised.
The Core Grounds of Patentability
Like most major patent systems, India requires that a claimed invention satisfy three core tests before it can be considered patentable: Novelty, inventive step (non-obviousness), and industrial applicability (utility). These criteria are now well-developed both in the statute and in Indian jurisprudence.
1. Novelty, i.e., Newness:
The first and most straightforward patentability requirement is Novelty. An invention must be new, meaning it has not been previously published, used, or otherwise disclosed anywhere in the world before the date of filing the patent application; this reflects the principle of absolute Novelty.
To qualify as a “new invention” under the Patents Act, the invention must not have been documented or published or used anywhere till the date of filing. The term Prior may include earlier patents, scientific publications, public demonstrations, disclosures on the internet, or even commercial use, and any such disclosure that fully teaches the claimed invention can destroy Novelty.
Indian courts have treated prior public use and earlier disclosure very seriously. In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, the Supreme Court held that a straightforward adaptation of existing technology that had already been lacks Novelty and inventiveness and hence is not patentable. This decision continues to influence how Novelty and obviousness are assessed in India.
A robust prior search, both in Indian and foreign sources, is therefore indispensable before filing a patent application.
2. Inventive Step / Non-Obviousness:
The second criterion, inventive step, goes beyond mere newness and asks whether the invention embodies a technical advance or economic significance that would not be obvious to a person skilled in the art. Under the Patents Act, an inventive step is a feature that involves technical advancement or has economic significance and makes the invention non-obvious to such a skilled person.
Indian courts have fleshed out this concept. In Bishwanath Prasad Radhey Shyam, the Supreme Court explained that an improvement on something known or a combination of known elements must be “more than a mere workshop improvement” and should produce a new result or a better or cheaper article. The Court clarified that a mere collocation of known integers, which does not involve the exercise of inventive faculty, will not qualify as an invention. Pertinently, the Indian Patent Office and courts often apply a practical test: if a hypothetical skilled practitioner, with common general knowledge at the relevant date and faced with the same problem, could have arrived at the claimed solution without requiring inventive ingenuity? If the answer is yes, the invention is likely to fail the inventive step test.
3. Industrial Applicability (Utility)
The third requirement is industrial applicability, also known as utility. Under the Patents Act, an invention can have an industrial application if it can be used in some industry, interpreted broadly to include sectors such as manufacturing, agriculture and services.
In practical terms, the invention must have real-world use and cannot remain purely theoretical or speculative. For example, a mathematical formula or an algorithm standing alone, without any concrete technical application, will not meet this requirement; however, a specific technical process that uses that formula in an industrial context may.
Products and Processes Patents
Satisfying Novelty, inventive step and industrial applicability is necessary but not sufficient; the invention must also fall within patentable subject matter under the Act. In India, both products and processes are patentable, including machines, devices, chemical substances, pharmaceutical compositions, manufacturing processes and other technological innovations, provided they meet the three substantive criteria and are not expressly excluded.
Indian courts have endorsed this technology-neutral approach while remaining mindful of public interest. For instance, in patent disputes involving pharmaceutical products, courts have balanced the patentee’s rights with access to medicines, but have not hesitated to uphold valid patents where statutory conditions are clearly satisfied.
Non-Patentable Inventions: Sections 3 and 4
The Patents Act also lists categories of subject matter that are not patentable in India, even if they appear to satisfy the three core criteria. These exclusions reflect ethical concerns, public policy considerations and India’s developmental priorities.
Typical non-patentable subject matter includes, among others:
- Frivolous inventions or those contrary to natural laws, such as perpetual motion machines.
- Inventions whose commercial exploitation would be contrary to public order or morality, or which are harmful to human, animal or plant life or health.
- The mere discovery of a scientific principle or abstract theory, without any practical application.
- The mere discovery of a new form of a known substance that does not result in enhanced efficacy, including polymorphs and derivatives that do not demonstrate significantly improved properties.
- Methods of treatment of humans or animals, and methods of agriculture or horticulture.
- Mathematical methods, business methods, or computer programs “per se”, without a technical contribution.
- Literary, dramatic, musical or artistic works, which fall under copyright rather than patent law.
- Presentation of information and specific topographies of integrated circuits.
Conclusion
To conclude, an invention in India must satisfy the core tests of Novelty, inventive step and industrial applicability, while also steering clear of the exclusions under Sections 3 and 4 of the Patents Act.
For businesses, start-ups and researchers, navigating these requirements effectively is key to securing strong, enforceable patents and building sustainable value around innovation in India.
Therefore, a well-prepared patent application, supported by thoughtful prior art analysis and a clear articulation of technical advance and efficacy, can make all the difference at both the prosecution and litigation stages.
How MAHESHWARI & CO. can help
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As a trusted legal partner offering end-to-end IP services, including patents, trademarks, copyright and design advisory, filing, prosecution, enforcement, litigation, as well as holistic portfolio management, the firm can guide clients through complex procedural and substantive IP requirements.
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Author: Akshi Seem, Associate Partner
