A Critique And Anaylsis Of The Novelty Of Patents In India




Sushmitha Ramkumar, Bennett University, Greater Noida


ABSTRACT


The novelty of a patent has been prioritized and provided significance to by the legislators and the judiciary from the time when laws regarding patents began to be recognized in India. Right from the Act VI of 1856, where ‘prior public use of an invention’ was first recognized, to the Patents Act of 1970, which prides itself on the strict criterion it lays regarding anticipation and novelty while taking into consideration the TRIPS Agreement, patent laws in India have certainly come a long way.


The Patents Act, 1970 has defined the terms “invention” and “new invention”, hence indicating that significance has been particularly imposed on the novelty of an invention. There should be no ‘prior art’ or the invention must not have been anticipated, and the invention must be a ‘state of the art’ for it to qualify as eligible for a patent. The new invention should not be a mere improvement, and must actually create a benefit to the citizens in a way.


Though the improvements to the novelty-based provisions are laud-worthy, one can simply not dismiss the drawbacks that the laws entail currently. There seem to be some provisions, particularly those like Section 3(d), that states that a mere acknowledgment of a new property or use of an already existing invention cannot be deemed novel, and Section 2(1)(l), that defines the term “new invention”, that seem rather incoherent and loose-ended. Apart from this, though Section 3(d), whose existence is meant to prevent the appalling issue of evergreening has served some benefits, one cannot disregard the fact that it does create issues like inaccessibility, monopoly, discouragement of research, and investment by foreign companies, especially in the case of the pharmaceutical industry, which need to be immediately tackled.



Indian Journal of Law and Legal Research

Abbreviation: IJLLR

ISSN: 2582-8878

Website: www.ijllr.com

Accessibility: Open Access

License: Creative Commons 4.0

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