Novelty as criteria of patentability-study of U.K., U.S. and INDIAN Position

calendar25 Jul, 2023
timeReading Time: 7 Minutes
Novelty as criteria of patentability-study of U.K., U.S. and INDIAN Position

A patent is a form of exclusive commercial use granted to the patent owner, creating a temporary monopoly and limiting competition. Patents do not automatically grant permission to use or commercialize the invention, as sales approval must be obtained separately. Patents aim to incentivize inventors and secure investment in production, marketing, and research and development. However, their use remains a contested issue.

The standards of novelty and industrial usefulness are used to ascertain whether a patent is valid or not, and these standards help distinguish between the creation of something new and a mere discovery. Patents for living matter, also known as “bio-patents,” vary widely between countries. Traditional standards of novelty and non-obviousness still apply, and new life patents are based on differences in properties and use compared to known substances. The availability of a patent for extracting microorganisms and genes from the natural environment varies depending on the country.

In the U.S., a “purified and isolated” compound can be patented if it meets legal standards for patentability. Patents on genes include only purified and extracted genes, not those that exist naturally. In the European Union, patenting biological substances that have been extracted from nature or produced using technology is permissible, regardless of whether they already exist in nature. The issue of granting patents on living things remains a delicate and often controversial topic.

What are Patents?

Patents are one of the necessary forms of intellectual property protection that exist today. Patents are a legal instrument employed to safeguard the rights of inventors regarding their novel invention or method and provide the inventor with exclusive authority over their creation for a defined duration, typically lasting 20 years.

Patents are an essential incentive for innovation as they enable inventors to profit from their creations and secure investment for further research and development. By obtaining a patent, an inventor can prevent others from manufacturing, selling, or using their invention without their permission. This temporary monopoly over their invention allows the inventor to negotiate favourable terms with potential licensees or investors and also provides a competitive advantage in the marketplace.

An invention must meet certain conditions to be eligible for patent protection under ARTICLE 27.1 OF THE TRIPS AGREEMENT. Patents are available for any new products or processes in all fields of technology as long as they are capable of industrial application and involve an inventive step. In addition to being new and valuable, the invention must be non-obvious and involve something that someone with average knowledge of the technical field could not have easily deduced.

Patent holders must disclose their inventions in the published patent documents in exchange for exclusive rights to use, make, and sell them for a limited period. While patents incentivize innovation and protect inventors’ rights, the process of obtaining one is expensive and complex, and there is an ongoing debate about balancing exclusive rights with promoting competition and access to information for the public good.

Novelty as criteria of patentability in India

The Patent Act of 1970[1] in India outlines the conditions under which an invention can be patented. 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. The actual application of an idea, not just the idea itself, can be patented. For example, the concept of rocks in the Indian epic Ramayana is just an idea and cannot be patented.

For an invention to be eligible for patent protection, it should be new and have an innovative step that brings significant improvement to a product. The basic tenets of the patent law state that ideas and discoveries cannot be patented but only their practical applications. India is one of the countries that have implemented domestic regulations governing patentable subject matter under Article 27 of the TRIPS Agreement, which mandates that the invention must be new, inventive, and suitable for industrial use.

Factors such as previously published materials, commercialized products, published names and usages, and selected inventions are considered to determine the lack of novelty or anticipation in a patent claim. Although the Patent Act does not define anticipation, sections (S. 29 to 34) help identify what it is not. Expert opinion may be considered to understand better expectations using relevant expertise, and prior art testing may only sometimes need to be repeated. Observable outcomes can be determined by the display of the effects resulting from what is described in the prior art, be it a method or product encompassed by the claims.

In India, when considering a patent application, the authority will determine whether the invention has been disclosed in a patent or other published documents prior to the application. If it has been disclosed, then the patent will not be granted. However, if the inventor can prove that the publication related to the invention was published without their consent, then the application cannot be considered anticipated. The concept of novelty is vital in determining patent eligibility as it provides a competitive advantage to the inventor. Under the Patent Act in India, a grace period of one year is provided for patent applications, allowing the invention to be described or published before an association of experts without losing the novelty requirement. The period of leniency can also serve the purpose of conducting reasonable inquiries. However, it is not applicable if the invention is commercially exploited or used in India.

Making use of or revealing an invention in India subsequent to submitting a provisional patent application does not constitute anticipation. When assessing novelty, the subsequent factors are taken into account: public usage, public demonstration, and traditional knowledge, which are described in Section 32, Section 31, and Section 3 (p), respectively. Furthermore, knowledge within local or indigenous communities in India or elsewhere, whether documented or not, can contribute to the development of inventions.

Also read: Detailed Process of Patent Registration in India

Novelty as criteria of patentability in the U.S. & U.K.

In the U.S., the novelty requirement for a patent means that the latest technology should not have anything identical to it. However, the most advanced technology may often come from the inventor or the owner himself, which can happen unintentionally, as presentations and suggestions that are considered to be available only to a limited audience may be published online by various organizations. In the United States, there is a grace period of one year after the inventor’s disclosure, during which patent applications can be filed. Nevertheless, even if the inventor discloses the invention after one year, it can still be used to challenge its novelty or obviousness. However, in most countries, there is no leniency period, and materials that have been published are considered to be state-of-the-art from the date of their publication.

The Graham v. John Deere Co. case established guidelines for determining the non-obviousness of an invention in the U.S., taking into account 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. Secondary considerations such as commercial success and unresolved long-term needs may also be taken into account. In most other countries, including the U.K., inventions must be novel to be patented. 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 Patent Laws of India, the USA and the U.K.

The patent laws of India, the USA, and the U.K. have certain similarities in terms of the rights granted to inventors and the exchange of disclosure in relation to the established production method. Each country has its own unique legal system, but the general requirements of novelty, non-obviousness, and industrial applicability remain the same.

Patent laws are designed to encourage innovation and protect the rights of inventors. The fundamental concepts of patent law are usually consistent across the globe. However, the process for obtaining a patent can vary from country to country.

For example, the U.S. and U.K. have a one-year grace period allowing inventors to publish their inventions before filing a patent without losing patent rights, which is not the case in India.

Furthermore, the U.K. has a process for opposition to a granted patent within nine months of the grant. On the other hand, the scope of this law in India is limited to disputes related to patent applications that have been published but have yet to be granted. The U.S. has a re-examination process that allows anyone to challenge the validity of a granted patent by submitting reasons and evidence to the USPTO.

Dissimilarities between the Patent Laws of India, USA and U.K.

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., the first inventor is given priority even if they were not the first to file a patent application. 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. The first applicant to file has the initial right to the grant of a patent. Still, the second applicant can initiate interference proceedings to determine who was the first inventor and therefore entitled to the grant of a patent. Although most offices around the world operate on a “first to file” system, the U.S. operates on a “first to invent” system.

In the U.S., inventors have a one-year grace period (35 U.S. Code Section 102) during which they can disclose their invention without losing patent rights. However, if they disclose their invention more than a year before filing the application, they are allowed to obtain a patent. On the other hand, the U.K. and India do not have a one-year grace period. If an inventor in these countries publishes their work a year before filing a patent application, they automatically lose all potential patent rights.

The way business method patents are handled is a key difference between the patent laws of the USA, the U.K., and India. Business methods cannot be patented in the U.K. or other European countries. In India, they can only be patented if they solve a technical problem and have a natural structure. In contrast, the USA allows business method patents as long as they involve more than just a well-known business process.

All three countries have similar rules for publishing patent applications 18 months after submission, except that the U.K. and India do not allow non-publication. In the U.K., anyone can oppose a granted patent within nine months of its issuance. If a patent is found invalid, it is revoked in all countries simultaneously. India only handles patent disputes when the application is published, but the patent has yet to be granted. The U.S. has a re-examination process that allows anyone to challenge the validity of a granted patent by submitting evidence and reasons to the USPTO.


In summary, novelty as criteria of patentability which is novelty is a significant factor in deciding the patentability of a specific invention.

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. Every nation has its unique patent regulations, and if an individual intends to seek a patent in a specific country, they must comply with that country’s application procedure. It is worth noting that patent laws are not universal and only apply across some countries.

Overall, it is essential to harmonize this 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.

Read our Article: US, EU And Indian Patent Laws: A Comparative Study

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