Tests of Patentability

Updated: Oct 1


Inventions play an influential role in our daily routines. The fictional world has exposed us to some of the finest inventions which we have fervently wished for to exist in real life. Be it the wheel or goggles that let you take virtual tours, humans are paving the path towards greater technological advancements. The best way to protect inventions and add more value to them is through patents. However, is every invention patentable? How does one determine if their invention can be patented?


THE PATENTABILITY TEST


For an invention to be eligible for patent protection, it must meet the three-pronged test of patentability known as the "NUNs Test". Forming an essential part of patent laws across jurisdictions, the test lays down that:

1. The subject matter must be new or novel;

2. It must have utility; and

3. It must be non-obvious.


  • NOVELTY

The subject matter is said to be novel if it is not a part of any publication or prior disclosure. To determine if the said subject matter passes the novelty test, the Examiner conducts extensive prior art and patent searches. Prior art refers to any form of publicly available information in the technical field before the filing of the patent application. If the subject matter is already a part of any publication or previous disclosure, it lacks novelty. The novelty test can make or mark one’s patent application. If an invention is not novel, it cannot be said to be a product of the inventor’s creativity.


  • UTILITY

The subject matter must be capable of industrial application. Here, ‘industry’ is to be understood in its widest sense. The said subject matter must have a particular practical application. Further, it must be operable, that is, the invention must be able to perform what it claims to. There is no place for vague or speculative applications of an invention within the scope of industrial application. Inventions which defy the laws of physics, like the perpetual motion machines and those restricted to personal use, like a method of smoking are not patentable.


  • NON-OBVIOUSNESS

Non-obviousness, or an inventive step, refers to a substantial technical advancement from what is already known. Additionally, the subject matter must hold some form of economic significance. If the invention is such that it can be deduced by a person of ordinary skills in the relevant field, it is considered to be obvious in nature. Even if it passes the Novelty and Utility tests, determining non-obviousness can be tricky. Mere improvements on the existing matter are not acceptable if it is devoid of inventiveness. The inventor needs to show the extra intellectual efforts by demonstrating how the invention produces something new and better.


A patent grants certain powers to the patent holder. Thus, it is pertinent to have a test for patentability. In a sense, the three-pronged test acts as a weapon which can restrain the powers. So, the next time you are inspired to invent something or protect your existing inventions, keep the NUN’s Test in mind!



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