Inventive Step vis-à-vis Non-Obviousness - Rethinking Section 2(1)(ja) of the Indian Patents Act, 1970
DOI:
https://doi.org/10.56042/jipr.v29i3.1887Keywords:
Inventive Step, Technical Advance, Non-Obvious, Article 27 TRIPS, Person Skilled/Ordinarily Skilled in the Art (PSITA/POSITA/PHOSITA)Abstract
Inventive step is the sine qua non for the grant of a patent. Arguably, this subjective evaluation of the claimed invention
ensures a sufficient leap forward to the existing technology. The footnote appended to Article 27 of the TRIPS Agreement
contemplates that inventive step may be deemed tobe synonymous with“non-obvious”. Thus, the footnote has left it openended
for the WTO members to speculate on may or may not situations or entirely rule out this apparent inventive step/nonobviousness
equivalence suggestion. TRIPS Agreement does not define inventive step or lay down the standards to be
followed in construing the person from whose perspective the claimed invention has to be looked into for inventive
step/non-obviousness determination. In the U.S., Congress and the Courts have consistently interpreted “non-obviousness”
as technical advancement to the concerned discipline. When it comes to Indian law, there is an apparentclarity, but when
delved deep, the outcome lacks crucial elements of predictability. Section 2(1)(ja) of the Indian Patents Act, 1970 is framed
in such a way so that it gives an impression to the reader that technical advancement and being non-obvious to a person
skilled in the art are two distinct concepts. The US Courts always gave economic considerations a secondary status in the
determination of the non-obviousness of a given invention. Indian patent statute specifically mentions economic
significanceand places it as an alternative to technical advancementwithoutclarifying the interconnection of the two
connotations.The authors intend to understand, in what way technical advance can be considered as a completely separate
standalone criterion for patentability in conjunction with non-obviousness. Furthermore, as a step forward, the authors want
to expound on whether economic consideration alone,without even requiring non-obviousness, can fulfil the inventive step
criterion in India.
