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  • Writer's pictureRajender Kumar

What is an ‘inventive step’ U/S 2(1)(ja) of the Patents Act, 1970

Recently in the matter of “Best Agrolife Limited vs. Deputy Controller of Patents & Anr. (2022 (92) PTC 231 [del]) the Hon’ble Delhi High Court has observed that a patent application cannot be dismissed without adhering to the basic principles of natural justice, i.e., while rejecting a patent application “recording of reasons for reaching to such a conclusion of dismissal of the application must be given”.

The Hon’ble Court further observed that “while rejecting an invention for lack of inventive step, the Controller has to consider three elements-

  • The invention disclosed in the prior art,

  • The invention disclosed in the application under consideration, and

  • The manner in which subject invention would be obvious to a person skilled in the art.

Without a discussion on these three elements, arriving at a bare conclusion that the subject invention is lacking inventive step would not be permissible, unless it is a case where the same is absolutely clear. Section 2(1)(ja) of the Act defines ‘inventive step’ as under:

(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.

Thus, the controller has to analyse as to what is the existing knowledge and how the person skilled in the art would move from the existing knowledge to the subject invention, captured in the application under consideration without such analysis, the rejection of the patent application under Section 2(1)(ja) of the Act would be contrary to the provision itself.”

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