To qualify for the grant of a patent under the Patents Act, 1970, the invention must be non-obvious. But determining whether an invention is non-obvious is one of the most difficult tasks in patent law. Discuss.

For the purposes of grant of a Patent to an invention, the determining as to whether an invention is non-obvious or not, i.e. determining whether it involves an inventive step or not, is one of the most difficult tasks in the Patent law. The mere coalition of two or more things without exercise of inventive ingenuity is not a subject matter for a patent. It is an invention if the process or manufacture of an article requires some ingenuity or has an inventive step. However, simplicity is not necessarily an objection for securing a patent for an invention. Even if the product and/or the process may be perfectly simple and very common, yet there may be an invention, if the inventor has developed a variant, which will render it more useful. After all, a disposable razor, a safety pin and a retractable tape measure all seem obvious now, yet none of these items were obvious at the time they were invented. The point of view from which it needs to be ascertained as to whether a particular invention is 'non-obvious' or not is that of a person skilled in the particular art to which the invention relates. An invention which has an inventive step, however small, but having regard to the condition of the state-of-the-art in the particular field on the date of filing or the priority date of the application for patent, whichever is earlier constitutes a step forward and may be a subject matter for a patent. Thus, one must review the scope and content of the prior art existing in the particular field to determine if the invention is non-obvious. Secondly, consideration must be given to the differences or enhancement carried out between the Prior Art and the Invention at hand. Thirdly, as already stated, if the invention would be obvious to a person having primary skill in the art to which the invention pertains, it cannot be patented. The Supreme Court in the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries interpreted the term inventive step. In this case, the court opined that 'obviousness' has to be strictly and objectively judged. The test laid down by the court to determine obviousness was: 'Had the document been placed in the hands of a competent craftsman (or engineer as distinguished from a mere artisan), endowed with the common general knowledge at the 'priority date', who was faced with the problem solved by the patentee but without knowledge of the patented invention, would he have come up with the invention in question' Simply put, according to the test, what has to be determined is whether at the time the invention was made, any other person skilled in the same field as the invention could have come up with the same invention, if faced with the same problem.