Proof of Progress: The Role of the Inventive Step/Non-Obviousness Standard in the Indian Patent Office

Global Perspectives on Patent Law, Oxford University Press, 2013

49 Pages Posted: 28 Aug 2017

See all articles by Feroz Ali

Feroz Ali

National Law School of India University

Srividhya Ragavan

Texas A&M University School of Law

Date Written: February 25, 2015

Abstract

Sir Nicholas Pumfrey J., in an attempt to guide the judicial mind to segregate obvious patents from nonobvious inventions, noted that: ‘‘Both the Scylla of considering nothing obvious except that to which the skilled man is driven and the Charybdis of considering every invention obvious that can be decomposed into a sequence of obvious steps must be avoided.’’ The task of creating a standard that would serve as a guidepost to avoid the obvious in the quest to glean the invention from the improvement has been tedious and remains ongoing. In this regard, one of the oldest debates for which a solution has eluded policy makers relates to the choice between market reliance versus regulatory reforms. The choice of either option as a tool to address policy concerns presents credible advantages as well as disadvantages. The United States has embraced both of these options to address concerns relating to various aspects of the legal system.

This paper contrasts the preference for market forces in the United States to streamline the doctrine of nonobviousness with the preference for regulatory reforms to achieve the same objective in India. In this regard, grant opinions from the Indian patent office – a relatively difficult research tool – have been examined to illustrate the standard and demonstrate the results of regulatory reforms on the quality of patents in India. In doing so, the paper also analyzes the conformity of the standard with the TRIPS Agreement, compares it with the standard in the United States and discusses how regulatory reforms have affected the development of the law on nonobviousness in India.

Keywords: Non-obviousness Standard, inventive step, indian patent office

JEL Classification: O31, O34

Suggested Citation

Ali, Feroz and Ragavan, Srividhya, Proof of Progress: The Role of the Inventive Step/Non-Obviousness Standard in the Indian Patent Office (February 25, 2015). Global Perspectives on Patent Law, Oxford University Press, 2013, Available at SSRN: https://ssrn.com/abstract=2569613

Feroz Ali (Contact Author)

National Law School of India University ( email )

Nagarbhavi, PO Box 72
Bangalore, Karnataka 560072
India

Srividhya Ragavan

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102
United States

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