Criteria for Attaining Patents
The criteria for granting patents are three-fold:
• Novelty
• Non-obviousness
• Utility
Let us discuss each criterion in detail.
The criteria for the grant of a patent are the object of a broad consensus. Most countries have followed the same general model for granting patent rights even without or before ratifying relevant treaties. This is, for instance, the case in India where the Patents Act 1970 was in tune with international regulations even though India was not a member state of the Paris Convention at the time4. The standard cumulative conditions for the grant of a patent are those of novelty, non-obviousness and utility or industrial applicability.
The condition of novelty serves, first of all, to distinguish inventions from other unpatentable knowledge. A broad distinction between inventions and discoveries separates the unearthing of causes, properties, or phenomena already existing in nature and the application of such knowledge to the satisfaction of social needs. It is on this basis that the natural world used to be deemed unpatentable and that plants would, for instance, have been seen as lacking the basic condition of novelty given the relatively limited human input in selecting and breeding them. The distinction between inventions and discoveries is one of the criteria that has evolved throughout the twentieth century and has led to a shift towards the recognition of life patents on micro-organisms. While the rise of life patenting has been mostly visible since the 1980s, the United States Congress determined already in 1930 that while a mineral is wholly created by nature without human assistance, a plant discovery resulting from cultivation is unique, isolated, not repeated by nature, and cannot be reproduced by nature unaided by man [cited in S Rep No. 315, 71 st Cong, 2n Sess at 6 (1930) and HR Rep No. 1129, 71 Cong, 2d Sess at 7 (1930)].
Notes and References
4 India only joined the Paris Convention; in December 1998.