NON OBVIOUSNESS: THE US PERSPECTIVE AND ITS INFLUENCE ON THE INDIAN PATENT ACT

Abstract

For an invention to be patentable in the United States it must not be obvious to a person skilled in the art, along with novelty and utility. The “non obviousness” test has always been a critical test and the debate surrounding it was that whether only breakthrough inventions can pass through this hurdle or even minor developments can qualify the test. Tracking down the history of the development of the patentability standards shows that non obviousness was not recognized as a separate requirement is of recent origin. The Patent Act, 1790 is recognized as the first patent legislation in US. But it did not contribute anything towards the development of non obviousness standard. The job of developing the standard was executed by the judiciary over a period of time4 but in India the job was mostly done by the legislature itself. The Indian Patent law as it stands today has developed through three stages, The colonial period, post independence period, and the globalization period. The colonial period saw the enactment of the Patent and Designs Act of 1911 which can be called as the first step towards a system of Patent administration in India which was based on the British law. The Patent Act, 1970 was the most important development in the post independent period which marked the era of strengthened Patent regime leading to the development of domestic industries and the amendments to the Act through the 1999, 2002 and 2005 Amendment Acts are the landmark developments post the globalization period.. The objective of this paper is to analyze the development of “non obviousness” as a separate standard of patentability in USA. The paper also aims to make a study on the application of the non obviousness standard towards biotechnology inventions by the US judiciary. Finally the paper makes a comparative analysis of the non obviousness with its Indian version and tries to find out where the Indian law stands.