Existing Knowledge, Skilled Person and Inventive Step under Indian Patent Law and the Problem of Borrowings

Abstract

Assessment of inventive step is difficult, with several tests being laid down for the same in different jurisdictions. However, borrowing such tests, e.g. the Windsurfing test, the TSM test, or the concept ofPHOSITA from U.S. Law, into Indian jurisprudence must be done with caution. As we argue here, Indian Law has certain peculiarities- (i) it requires something more than a mere difference from prior art; it requires technical advance compared to existing knowledge, and (ii) the person judging such technical advance for existence of obviousness is not ordinary, not average nor super-skilled but a capable skilled person. Any interpretation or borrowing which loses sight of this statutory requirements can result in interpreting the skilled person as less capable than what the Indian Act/ legislature expected it to be. This can result in lowering the inventive step standard. This can have repercussions on the quality of granted patents, since it is the quality of innovation and not merely the quantum thereof which ought to matter.