Patent Eligibility Essay

It has been always widely debated whenever there is a question being raised about a patent being granted to a certain product. There is a large section of experts who are in favor of the agreement that the “eligibility test” should be done primarily whenever a product has come up for patenting. The three main criteria to be passed by a product before it is granted a patent are (i) uniqueness; (ii) innovativeness; and (iii) its practical utilization in the industry. Therefore, whenever there is a case arguing the grant of a patent to a certain product as per the existing Indian patents Act, Article 27(2) and Article 3 of the TRIPs Agreement, the initial inquiry would be to see whether the eligibility was ever done for that particular product

Patent eligibility is very similar to the test of non- obviousness i.e. the invention should have technical advancement as compared to existing knowledge. The significant improvement in efficacy will always be in comparison to the existing product. The format of IPR and the provisions made on the TRIPs Agreement are actually of a very flexible nature. When put into effect by different countries the main context of declaring a patentable product will actually depend on the social and economical condition of a particular country or nation. The provision of the Indian Patents Act's section 3(d)'s main focus is on the above subject.
The major focus of Section 3(d) is to restrict patenting of incremental innovations not exhibiting significant superior effects over the original existing from which they have actually been derived. The inventions are deemed to be mere discoveries of a new form of a known substance and which do not result in the enhancement of the known efficacy of that substance, thus not “patent eligible” under the purview of this

In the pre-grant opposition of Nevirapine (pediatric suspension of Nevirapine Hemihydrates), the Assistant Controller denied the patent, by finding lack of inventive step in the absence of any disclosure of the advantage of smaller particle size (1-150μ) in the composition. By applying the test of patent eligibility, the denial was specifically on the ground of failure in placing the data relating to therapeutic effect of the known substance and the claimed substance (derivative), on