Open Access Research Article
NOVELTY AS CRITERIA OF PATENTABILITY-STUDY OF UK, US, AND INDIAN POSITION BY: - SUSHMITA DAS
Published Paper
Article Details
NOVELTY AS
CRITERIA OF PATENTABILITY-STUDY OF UK, US, AND INDIAN POSITION
AUTHORED BY: - SUSHMITA DAS
Student: - 9th semester B.A.LL. B
Christ Academy Institute of Law,
Bengaluru
Abstract
In the realm of intellectual property
law, patents serve as a crucial mechanism for incentivizing innovation by
granting inventors exclusive rights to their creations/inventions. However, not
all inventions are eligible for patent protection, one of the fundamental
criteria determining patentability is novelty. Novelty, in this context, refers
to the requirement that an invention must be new or original to qualify for a
patent. This paper delves into the concept of novelty as a criterion of
patentability, examining the legal frameworks and interpretations across three
significant jurisdictions: the United Kingdom (UK), the United States (US), and
India. Each jurisdiction has its own set of laws, regulations, and judicial
precedents shaping the understanding and application of novelty in patent law.
Keywords: Novelty, prior art, grace period, disclosure
Introduction
Novelty is a fundamental criterion of
patentability that is crucial for obtaining a patent on an invention, it refers
to the requirement that an invention must be new or, in other words, not
disclosed to the public before the filing date of the patent application. If an
invention is not novel, it may not be eligible for patent protection. Also,
there are people who get confuse between the termolgy “Novelty” Nobility” as
the same was found when survey form was shared to all the category of people.
Even though the questions put forward were very straight forward still there
was an issue in understanding about the title.
And to clear the same “Novelty
means quality of being new, original, or unusual” and “Nobility
means quality of being noble in character”
Statement
of problem
There are many researchers or
inventors who is still are unknown to the laws available to protect their new
ideas and inventions in almost every field, one of the main issues related to
novelty is public disclosure. If an invention has been made available to the
public before the filing date of the patent application, it may lack novelty.
This could occur through publications, public presentations, exhibitions, or
other forms of public disclosure.
Relevance
of the study
The novelty criterion is determined
by its impact on the assessment of whether the claimed invention is novel and
has not been disclosed in the prior art, understanding, and addressing the
relevance of prior studies is crucial for successfully navigating the patent
application process.
Objective
of the study
Ø The primary
objective is to provide a comprehensive and well-documented basis for claiming
that the invention is new, inventive, and not disclosed in the prior art as this
is crucial for successfully obtaining a patent.
Hypothesis
The claimed invention introduces a
novel solution to a technical problem that is not disclosed in the existing
body of knowledge (prior art), then the invention is likely to meet the novelty
criteria for patentability.
Research
questions
1. How do the
novelty requirements in India compare with those in other jurisdictions?
3.
Has the invention been used or made available to the
public in India prior to the filing date and how much time can be taken by
the patent officials to approve the patent?
Research
methodology
The research work has been done with
the help of empirical method which carries the survey done by circulating
google form and it also emphasises on legal structure, case analysis and legal
framework, the doctrinal information has been taken from different legal
articles and case laws which took place and same has been mentioned.
1.
How do the
novelty requirements in India compare with those in other jurisdictions?
Novelty is a fundamental requirement
for an invention to be patentable. It is used as a principle to determine
whether the invention, which has been brought for being patented, is new[1].
Here are some key points about novelty as a criterion for patent:
·
An
invention is considered novel or new if it has not been anticipated by prior
publication, prior public knowledge, or even prior use[2].
·
The
invention must not form part of the state of the art, which includes anything
found in printed media or described in a patent application[3].
·
If
an invention was known to the public before filing a patent application, or
before its date of priority, if the priority of an earlier patent application
is claimed, the invention is not considered new and therefore not patentable.
·
Novelty
shows the difference between invention and discovery. In the US this
distinction can be seen from decades in the form of “product of nature
doctrine” and other similar rhetoric elsewhere[4].
·
The
traditional standards of novelty and non-obviousness also apply to living
matter, so new life patents are based on differences in the properties and uses
of new life and known substances[5].
# Lallubhai Chakubhai
Jariwalla v. Chimanlal Chunilal & Co.[6]:
I this case court stated that there are 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. The
plea of want of subject-matter is included in the plea of want of novelty[7].
India
perspective
Novelty is a fundamental requirement
for obtaining a patent under the Indian Patent Act[8].
The Indian Patents Act[9]
defines a “new invention” as any invention or technology that has not been used
in the country or anywhere else in the world before the date of the filing of
the application with complete specification[10]. An
invention is considered new if it is not anticipated by prior publication,
prior public knowledge, or even prior use. The subject matter must not have
fallen in any prior art. Here prior art, which is used to determine the
patentability of an invention, particularly whether an invention meets the
novelty and the inventive step or non-obviousness criteria for patentability.
Prior art is any evidence that your
invention was already publicly known or available, in whole or in part, before
the effective filing date of your patent application[11].
Prior art can include the following[12]:
·
A product that was available for sale
·
Commercial use of the invention
·
Articles, publications, or journals (printed or
electronic)
·
Presentation at a public event (a trade show,
conference, etc.)
·
Public knowledge or use of the invention (e.g.,
demonstration)
·
A previously filed patent application (assuming the
previous application eventually becomes a published application or an issued
patent).
Prior art arises when someone has
either made an idea available to the public or filed a patent application that
was eventually published or issued as a patent[13].
Ø Prior art
is not limited to existing products or issued patents but it includes a broad
range of information that was publicly available or publicly disclosed.
Ø Prior art
is evaluated by patent offices as part of the patent granting process in what
is called “substantive examination” of a patent application.
Ø Relevant
prior art identified by patent offices or patent applicants are often cited by
patent applicants in patent applications and by patent offices in patent search
reports.
In July 2018 India’s first ever SEP
decision was issued by the High Court of Delhi in two joined (identical)
disputes which was
#Koninklijke Philips v.
Rajesh Bansal and Koninklijke Philips v. Bhagirathi Electronics.
These cases where the India’s first ever Standard Essential Patent (SEP)
decision in these two joined disputes. The defendants were importers and
assemblers of DVD players in India. The plaintiff, Philips, filed patent
infringement cases against both, claiming that they had imported DVD player
components that were manufactured using its patented technology and had then
assembled them in India without obtaining licenses.
#InterDigital v Xiaomi:
This case was released by the High Court of Delhi in early May 2021. The US
tech company InterDigital filed suit against the Chinese consumer electronics
maker Xiaomi, claiming infringement of its 3G and 4G patents, as Xiaomi had
used its technology without authorization. Keeping in mind the interests of both
the parties, the court rejected the two-tier system proposed by Interdigital on
two grounds – (i) fair play, where it is essential for each party to be aware
of the case of the other party that it is supposed to counter; and (ii) the
nature of lawyer-client relationship, which requires the lawyer to act in
accordance to the client’s instructions and not “substitute their judgement for
that of the client”[14]. The
Delhi High Court held that a court of one state (i.e. the Wuhan Court) cannot
bar the parties from pursuing the dispute at a forum in another state (i.e. the
Delhi court), when this foreign forum has the competent jurisdiction to hear
the case. The court also clarified that exceptions can apply only when the
foreign forum is ‘vexatious or oppressive’ to the state’s court. Moreover, the
court ordered Xiaomi to remunerate InterDigital for the penalties imposed by
the Wuhan court[15].
#Farbewerke Hoechst
Aktiengesellschaft Vormals Meister Lucius v Unichem Laboratories[16]:
in this it was stated that, state-of-the-art, the publication or invention must
contain all the invention’s features in question. The invention will continue
to have its novelty unless the patent claim in question is described in its
entirety in the published material.
USA
perspective
In the USA, the doctrine of
anticipation requires novelty of invention. Essentially, §102 of the U.S. Code
requires the patent applicant to demonstrate that the invention is new[17].
An invention is considered new if it is not identical to the prior art2. The
standard for anticipation (and hence for newness) is a rigorous one; requiring
that every element of the claimed invention, as arranged in the claim, be
disclosed either specifically or inherently by a single prior art reference.
USA has a broader definition of prior
art, which also includes any patent or patent application filed in the US or
abroad before the filing date of the patent application, regardless of whether
it was published or not. They approach to the assessment of novelty, on the basis
of the anticipation test, this test requires that the prior art must disclose
every element of the invention claimed in the patent application in the same
way and for the same purpose.
In USA, a person is entitled to a
patent unless the claimed invention was patented, described in a printed
publication, or in public use, on sale, or otherwise available to the public
before the effective filing date of the claimed invention[18].
There are exceptions for disclosures made 1 year or less before the effective
filing date of the claimed invention[19].
#Swofford v. B & W, Inc[20].
and #Graver Tank & v. Mfg. Co. v. Linde Air Prod. Co[21].
here in the both cases court observed that utility and novelty are questions of
fact, not law. Therefore, whether an invention has novelty or not has to be
decided on a case-to-case basis. For the first case United States Court of
Appeals, Fifth Circuit gave the verdict, whereas for the second one United
States Supreme Court gave the verdict.
#Minerva Surgical, Inc. v. Hologic,
Inc.[22]:
in this case
Hologic sued Minerva for infringement. Minerva argued that
Hologic’s patent was invalid because the new claim did not match the written
description. Hologic invoked the assignor estoppel doctrine because Truckai had
assigned the original application, he and Minerva could not impeach the
patent’s validity.
The Federal Circuit agreed and the Supreme
Court defines the boundaries of the "assignor estoppel" defense to a
claim of patent invalidity as The Federal Circuit failed to recognize these
boundaries, deeming “irrelevant” the question of whether Hologic had expanded
the assigned claims. If Hologic’s new claim is materially broader than what
Truckai assigned, Truckai could not have warranted its validity.
#Helsinn Healthcare S. A. v. Teva Pharmaceuticals
USA, Inc.[23]:
In this case,
Helsinn sued for infringement. Teva countered that the 219 patent
was invalid under the “on sale” provision of the AIA, which precludes a person
from obtaining a patent on an invention that was “in public use, on sale, or
otherwise available to the public before the effective filing date of the
claimed invention,” 35 U.S.C. 102(a)(1), arguing the 0.25 mg dose was “on sale”
more than one year before Helsinn filed the 2003 application.
The Federal Circuit held, and the
Supreme Court unanimously agreed, that the sale was publicly disclosed,
regardless of whether the details of the invention were publicly disclosed in
the agreements where a commercial sale to a third party who is required to keep
the invention confidential may place the invention “on sale” under section
102(a). The patent statute in force immediately before the AIA included an
on-sale bar. Supreme Court and Federal Circuit precedent interpreting that
provision indicated that a sale or offer of sale need not make an invention
available to the public to constitute invalidating prior art. The Court applied
the presumption that when Congress reenacted the “on sale” language in the AIA,
it adopted earlier judicial constructions.
UK
perspective
In the UK, an invention shall be
taken to be new if it does not form part of the state of the art[24].
The state of the art in the case of an invention shall be taken to comprise all
matter (whether a product, a process, information about either, or anything
else) which has at any time before the priority date of that invention been
made available to the public (whether in the United Kingdom or elsewhere) by
written or oral description, by use, or in any other way
Under UK patent law, an invention is
considered new if it does not form part of the state of the art. The state of
the art comprises all matter which has at any time before the priority date of
the invention been made available to the public[25].
There are exceptions for disclosures due to unlawful obtaining or breach of
confidence.
#Generics (UK) Ltd and
others v Yeda Research and Development Company Limited and others [26]
marks the first patent court case to consider the impact on novelty of the UK
doctrine of equivalents which was recently introduced into UK patent law by the
Supreme Court in #Actavis v Lilly[27].
In this case, Arnold J ultimately
held the claims invalid for obviousness considering an alternative regimen
disclosed by the prior art (the same prior art over which the claims were found
to be novel), meaning that the claimed regimen was obvious to try with a fair
expectation of success.
Also, UK Supreme Court clarified the
circumstances in which the monopoly granted by a patent could be widened beyond
the normal interpretation of the claim to cover variants which have no material
effect on the way the invention works.
Survey conducted on the Novelty as
the criterion of patentability: study of UK, US, and INDIAN Position.
The survey that was conducted through
google form as can be seen in the paper, accordingly there were 42 responses
from different category of people (fig.1) and which also allow us to understand
how much they would know about Novelty as the criteria of patentability, though
the majority was of student but still that counts as there are students who at
the early stage actually tries to create something new when they have that
motivation.
The survey includes geographical location
(fig.2) of India, USA, and UK as the paper is of comparative study of the
novelty criteria in the patentability.
According to the research conducted
and as per the result it is not wrong to say that there are aware about the
laws relating to novelty in the context of Patentability (fig.3), according to
the survey almost 61.9% knows about it where as 38.1% have no idea about.
Though this research has been done by asking citizen of USA and UK as well to
get a broader idea.
There is another point to be noted
that, there are people who are aware about the Novelty criterion under patent law
but only for their native country not the way around which is common and usual,
as no one would research about other country laws unless and until he/she
personal interest is involved.
The survey conveys that the majority
agrees (fig.4) that novelty is an important criterion for an invention and it
is necessary part of the patent, which should not be ignored.
Here the results majority in yes
(fig.5) but with mere difference from no so it is not wrong to say that some
know and some do not people who know are working as professor or student who
are researcher as well or attorney,
The survey also seeks to put light on
the matter of clarity of the concept of novelty (gig.6), where the results are
same as fig.5, the rate is same in both contexts.
The survey asked the question whether
they felt that the filing of application is challenging, here the majority of vote
says that they felt that it is challenging (fig.7), which could be true also as
the novelty criterion has to go through a lot of process so that no identical
invention be patented in different names that to with same method and
everything.
When asked that do they find notable
difference between the laws over novelty. The maximum votes were for no
(fig.9), which make sense as unless and until they will not do research over
the matter how would they will find differences in the laws and could make notable
differences as well.
Here, the majority voted for yes
(fig.8), that they have concern, and the concern would be the advancement of
technology and there are people who are not so familiar with the technology
till yet as they do not believe to rely on technology, rather they would depend
on human brain, books or articles published in authentic papers.
2.
How might the grace period impact the novelty assessment, especially in
the context of public disclosures and how much time can be taken by the patent
officials to approve the patent?
The grace period in patent law refers
to a specific duration prior to the filing or priority date of a patent
application, during which an inventor can disclose their invention without it
destroying the novelty of the invention for patenting purposes. Now obviously
the other question that comes to the mind is that will not the invention be
affected by the same as in when the invention will be disclose to public
definitely some or the person would try to copy it and would want to have
rights over the same. So, for such situation there are laws provided which
states that:
In India the Patents Act[28]
in India provides a grace period of 12 months for filing a patent application
from the date of its publication in a journal, its public display in an
exhibition organized by the government, disclosure before any learned society,
or published by the applicant.
Whereas in USA, inventors have up to
one year from their earliest date of public disclosure of their invention to
file a US patent application.
And in UK law, person will get six
months from the date of the disclosure in which to file an application for a
patent. However, the UK does not presently have a 12-month patent grace period,
instead having only relatively weak six-month grace periods for abusive
disclosures or disclosures made at a designated international exhibition.
Coming to the research question, it
can be understood by the points mentioned below
i.
Grace
Period Purpose: The primary purpose of a grace period is to allow inventors to
disclose their inventions to the public (through publications, presentations,
or other means) without losing the novelty of their invention.
ii.
Exemption
from Prior Art: During the grace period, certain disclosures made by the
inventor or someone who obtained the information from the inventor may be
exempted from being considered as prior art and this means that these
disclosures will not be used against the inventor when assessing the novelty of
the invention.
iii.
Conditions
for Grace Period: The conditions and duration of the grace period can vary
between jurisdictions also in some cases, the grace period is triggered by the
inventor's own disclosure, while in others, it may be triggered by a third
party's disclosure
iv.
Novelty
Preservation: If an inventor discloses their invention publicly and then files
a patent application within the grace period, the disclosure is not considered
prior art and therefore, it does not affect the novelty of the invention[29].
v.
Flexibility
for Inventors: The grace period provides inventors with flexibility, as they
can present their inventions at conferences, publish their findings, or discuss
their inventions with potential investors without losing the opportunity to
obtain a patent[30].
vi.
Legal
Uncertainty: The grace period prolongs the period of legal uncertainty during
which the public may not be able to conclusively assess whether a disclosure
forms prior art or not, thereby increasing the risk of unintentional
infringement by third parties[31].
vii.
Variations
Across Jurisdictions: The grace period varies across jurisdictions, some
countries offer a 6-month grace period, while others offer a 12-month grace
period and the specifics of what disclosures are covered by the grace period
can also vary.
In case of #Farbewerke
Hoechst Aktiengesellschaft Vormals Meister Lucius v Unichem Laboratories[32],
wherein the court held that if the inventor proves that the matter published
was obtained fraudulently and was published without his or her consent, then it
may not be anticipated.
Now, it is known to everyone that how
everyone wants things to be done in instant or click of fingers but it is not
possible in every situation especially in case of laws that to under patent
laws.
India: The time required for getting
a patent grant in India can vary as mentioned below
·
The
general route of the patent grant can take between 3 to 5 years from the filing
of date[33].
·
The
patent application is published after 18 months from the filing of date[34].
·
There
are recent updates in patent rules, specifically the Patents (Amendment) Rules,
2021, which now offer advantages like faster grant of patent applications by
expedited route. This reduces the time required for grant of patent from 3-4
years to 1-1.5 years[35].
·
The
fastest patent was granted in 41 days after filing a request for expedited
examination[36].
USA: According to the United States
Patent and Trademark Office (USPTO), it takes about 22 months to get patent
approval after going through the steps to file a patent.
·
Even
if you are eligible for a prioritized examination for plant and utility
patents, known as Track One, you might get approval in six to 12 months[37]
and this can cost around $1,000 to $4,000.
·
However,
there are papers that suggest that the average wait time could be up to 25
months in the United States.
UK: In the UK, the process for
obtaining a granted patent typically takes from 2 to 4 years from the date of
the application[38] which
is filing of date.
·
However,
by paying some fees early and replying promptly to letters from the UK
Intellectual Property Office (UKIPO), it is possible to reduce this time to as
little as 18 months[39].
·
Also,
some research papers suggest that UK patent applications can sometimes be
granted in less than one year.
3.
Has the invention been used or made available to the public in India
prior to the filing date?
Determining whether an invention has
been used or made available to the public in India prior to the filing date of
a patent, it's important to consider the principles of novelty and prior art.
If the invention has been disclosed or made accessible to the public before the
filing date, it may impact the novelty of the invention, which is a key
requirement for patentability.
One important case law that addresses
the issue of prior use and public availability in India is the case of "#Biswanath
Prasad Radhey Shyam v. Hindustan Metal Industries[40]"
This case established the principle that for an invention to be considered
anticipated, it must be made available to the public in a form that enables the
public to understand and practice the invention.
In this case, the court emphasized
that mere prior knowledge by a few individuals would not necessarily constitute
anticipation. The public must have access to the information in a manner that
enables them to use the invention. The court also considered the importance of
accessibility and the need for the information to be available to the public at
large.
In the case of #Novartis AG
vs Union of India[41],
the Supreme Court rejected the patent application for a beta crystalline form
of imatinib mesylate, a drug used to treat chronic myeloid leukaemia, on the
grounds of lack of novelty and inventive step, here the court rejected the
patent application of Novartis for its anti-cancer drug Glivec. The main issue
was whether Glivec satisfied the criteria of novelty, inventive step, and
enhanced efficacy under Section 3(d) of the Indian Patents Act, 1970. The court
held that Glivec was not a new invention, but a modified form of a known
substance (imatinib) that did not show any significant improvement in
therapeutic effect and the court also ruled that Section 3(d) was
constitutional and in compliance with the TRIPS agreement, and that it aimed to
prevent the evergreening of patents by introducing minor changes and the
judgment was widely hailed as a victory for public health and access to
affordable medicines in India and other developing countries.
In the case of #TVS Motor
Company Limited vs Bajaj Auto Limited[42],
The main issue in this case was whether TVS Motor Company Limited had infringed
the patent of Bajaj Auto Limited by using a similar technology in their 125-CC
Flame motorcycle. Bajaj Auto Limited claimed that TVS Motor Company Limited had
copied their DTS-i technology, which involved the use of two spark plugs at
either end of the combustion chamber to achieve faster and better combustion.
TVS Motor Company Limited argued that they had incorporated improvements in
their product, such as the use of three valves instead of two, which
distinguished it from the patented technology of Bajaj Auto Limited. TVS Motor
Company Limited also filed a counter-suit against Bajaj Auto Limited for
groundless threat of infringement.
The Madras High Court held that the
patent for an improved internal combustion engine with a twin spark plug was
not anticipated by prior public use, as the patentee had taken reasonable steps
to maintain the confidentiality of the invention during the trial runs of the
engine before filing the patent application.
Bajaj Auto Limited appealed to the
Supreme Court of India against this order, the Supreme Court of India dismissed
the appeal of Bajaj Auto Limited, and affirmed the order of the Division Bench
of the Madras High Court. The court observed that the patent of Bajaj Auto
Limited was not a new invention, but a mere workshop improvement of a known
substance, The court concluded that the patent of Bajaj Auto Limited was
invalid and liable to be revoked. The court also advised the parties to settle
the matter amicably outside the court, and withdraw the pending suits and
proceedings against each other in various courts and fora. The court stated
that the parties were engaged in a healthy competition in the field of
automobile industry, and that they should focus on innovation and development
rather than litigation. The court hoped that the parties would respect each
other’s intellectual property rights and refrain from making any baseless
allegations or threats in the future.
Conclusion
It can be concluded through the paper
that novelty is one of the essential criteria for patentability, which means
that the invention must not be already known or disclosed to the public before
the filing date of the patent application and that novelty is a relative
concept which is used by the countries, as different countries may have
different standards and sources of prior art that can affect the novelty of an
invention, therefore, a comparative study of the novelty criteria in different
jurisdictions can help inventors and patent applicants to understand the
requirements and challenges of obtaining patent protection in various markets
and this paper also helps to understand that how novelty is important in each
area of country wordings can be different but meaning would remain the same
unless and until same has been broadly explained.
Bibliography
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·
India:
The Patents Act 1970
·
USA:
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·
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·
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Article Information
NOVELTY AS CRITERIA OF PATENTABILITY-STUDY OF UK, US, AND INDIAN POSITION BY: - SUSHMITA DAS
Authors: SUSHMITA DAS
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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