Another aspect of novelty under the patent system is that it is, by and large, distinct from the public domain. In principle, any knowledge, which is already in the public domain before the filing of the application cannot be protected through patents. This is of significance with regard to traditional knowledge since a significant part of traditional knowledge implies information that is freely available to the public. It is also significant because the distinction between the knowledge in public domain and novel knowledge implies that under the existing patents system that only novel knowledge can be protected. One of the practical problems associated with the notion of public domain is that this imposes a duty on the relevant patent office to determine whether or not the application is already in the public domain. Given that inventions increasingly use knowledge from different parts of the world, a prior art search in India where the application is filed, may not be sufficient to determine the nature of the claim. One solution to this problem is, for instance, to determine that relevant prior art includes everything that has been made available to the public anywhere in the world by means of written disclosure. This is the solution adopted by the Patent Co-operation Treaty 5, a practical solution, which helps in clearly ascertaining the scope of the public domain but may not provide a comprehensive answer in the case of traditional knowledge, which has a higher likelihood of being in the public domain without being described in written form. It also fails to indicate whether traditional knowledge which is only known to insiders in a given community should be deemed novel or part of the public domain6 .
The second condition for the grant of a patent is the requirement of an inventive step . This implies what is claimed as an invention must not be obvious to someone who is deemed to be skilled in the specific field in which the invention is claimed. There is no specific standard, which is set a priori but a general rule of thumb would be that in a field like genetic engineering a person skilled in the art is someone who has the knowledge of a graduate scientist or technician in the relevant area.
And, finally, the invention must be useful or industrially applicable to be patentable. The basic idea behind the condition of usefulness is that the novel idea should have practical use. This provides the basis for distinguishing technological advances that can have practical applications and other categories of advances in knowledge such as scientific theories that might not, pro tempore , have direct applicability. Thus, abstract ideas, scientific and mathematical theories as well as aesthetic creations generally fall outside the purview of the patent system because they do not have direct application. This is partly premised on the perceived need to keep scientific results in the public domain so that technological development immediately and freely benefits from scientific advances.
Notes and References
5 Article 15, Patent Co-operation Treaty, Washington, 19 June 1970, International legal matters , 978 (1970).
6 Collective statement of indigenous peoples on the protection of indigenous knowledge, Third Session, UN Permanent Forum on Indigenous Issues, New York, 10-21 May 2004.