(Important note: Though this post is
fairly long, it thoroughly discusses the concept of “invention” under Patents
Act, 1970. Starting from the basic understanding of the concept, the post
culminates its discussion on the landmark decision of the Supreme Court of
India in Novartis AG v. Union of India)
Invention:
A historical background prior to the enactment of Patents Act, 1970
In 1947, when India was released from rule of
British Government, the country was still dominated with a patent regime favourable
to multinationals abroad. Though much has changed since then, Indian patent
jurisprudence is still witnessing ups and downs. To the core of the patent law
lies an ‘invention’ which, according to Black’s Law Dictionary, means an act or
operation of finding out something new. Defining this ‘something new’ has, even
in 21st century, remains the most problematic issue under Indian patent
law.
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The old patent regime, which was governed by Indian
Patents and Designs Act, 1911 (“Old Act”), defined
an invention as ‘any manner of new manufacture
and includes an improvement and an alleged invention’.[1] According
to the Old Act, term ‘manufacture’ included
‘any art, process or manner of producing, preparing or making an article, and
also any article prepared or produced by manufacture’.[2] That
is, in order to qualify as an invention under the Old Act, there should have been an
existence of a new art, process or manner of producing.......any article
prepared or produced by manufacture.
By not defining what is ‘new’, the definition had provided
space for the existence of ambiguity. Could minor changes be considered as ‘new’,
and hence, sufficient for patent protection? A similar problem still exists
under the Patents Act, 1970 (“1970 Act”) while defining 'inventive step'.
While the definition of invention under the Old Act did not provide that the
patented invention should be useful, the Supreme Court of India (“Supreme
Court”), in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, stated
that courts have generally held that an invention must be useful.[3]Under
the 1970 Act, it was provided that an invention should be useful (originally enacted
definition).
