One of the core requirements for an invention to be patentable in India, and in fact, all over the world, is Industrial Applicability. Under section 2(1) (ac) of the Patents Act, 1970, the definition clearly states that an invention must be capable of being made or used in the industry. Still, because of this provision’s vague wording, there often seems to be some room for interpretation as to what can or cannot be considered capable of being applied in the industry. In this context, the industry can mean to be quite broad, including agriculture. According to the Guidelines for Examination, given out by the European Patent Office, “industry” should be categorized as a “physical activity which is of a practical nature and not an aesthetic one,” and not one that is necessarily related to manufacturing or machinery.
Industrial applicability as a provision is also seen in the Patent Cooperation Treaty, in Article 33, wherein we can see that for a claim to be considered industrially applicable, it must be capable of being used (in a technological sense) in any industry. The industry here is understood in the broadest possible sense, as in the Paris Convention.
India became a member of the treaty in 2001, and through the Patents (Amendment) Act (2002), added section 2(1)(ac), and this is where the term was first introduced. Before this amendment, the grant of a patent was only given to inventions that were “new and useful.” As per section 64(1)(g), a lack of utility was one of the grounds for revoking a patent, but as seen in Lakhapati Rai & Ors. v. Srikissen Dass & Ors., the utility does not necessarily mean improvement, as it means practicability. The utility test is based on whether the invention will do what it is claiming to do.
Under the Patent Law in India earlier, utility being the main requirement of patentability, the court described it as an invention that betters the industry’s preceding knowledge about a particular invention (Young and Neilson v. Rosenthal & Co.)
But it was in F. Hoffman-La Roche case that the court gave a comprehensive understanding of the term, stating that re requirement necessitates an invention to have commercial use, and even though the invention for which an application is made is not in its final form, the patent can only be granted in cases where there is some commercial viability to the same. Thus, this requirement’s focus is not on the product itself but the potential; it has to be commercially viable.
Further, industrial applicability requirements work to counter a significant challenge of vague and speculative applications. Any claims that might or might not be achievable with further research or work would not fulfill the industrial applicability requirement and, to a certain extent, pre-emptively defeats any patent trolling attempts that could be made.
Some more case studies concerning this provision can be seen below:
-In Chiron Corp v. Murex Diagnostics, it was held that the phrase capable of the industrial application must carry with it a meaning of trade or manufacture in the broadest sense, and there must be profit to be made since no industry would make use of something which would be useless.
-In Melia’s Application in the US, it is seen that a scheme for exchanging a prison sentence for corporal punishment has no industrial application and in no sense forms a method of doing business.
-In Eastman Kodak Co. v. American Photo Booths Inc., wherein a patent related to the photo-booth camera was applied, the patent officer held that since the invention claimed could never work in the manner in which it was described, it could not have any industrial applicability.
Industrial applicability is a requirement in other jurisdictions as well, namely:
Japan: Under article 29(1) of the Patent Act, an inventor of an invention with industrial applicability is entitled to obtain a patent for it, given that the invention is novel. This is even more so with inventions related to genes, chemicals, and organisms, and the particular use of such inventions must be specified. The industry can be considered to mean agriculture, mining, commercial, and service industries. Medical and industrial use is still not recognized in Japan, though some medical treatments can be patentable.
Europe: Under the European Patent Convention under article 56, an invention must be capable of industrial application, and that is held to mean an invention that can be made or used in any industry, including agriculture. The mere use of a substance in a particular way does not warrant industrial use unless there is some profitable use that comes along with it. An invention that does not follow physics laws will also not be valid.
USA: In the United States of America, one of the basic requirements for an invention to be patentable is a utility or that the patent is being sought for a “useful invention.” An invention will not be useful if, in the application, the applicant fails to show the utility of the invention or fails to disclose enough information to show it to be useful, and another rare instance is that the utility as being described in the application is not credible. Instead of using industrial applicability, the United States law uses “practical utility” however;, it serves the same purpose.
The capability of an invention is almost a universally required criteria that must fulfill to be patentable. This is so because the grant of the patent, along with the incentives for innovation that it seeks to create cannot be given to abstract or incomplete ideas. If there are some advantages to be availed with a patented invention, then it must be ensured that those advantages are given to the right people and the right inventions.
