LLM Group 3 Law of Intellectual Property and Information Technology Law of Patents 2016 Question Paper with Solutions

NOVELTY. Section 2(1)(l) defines a "new invention" as one NOT ANTICIPATED BY PUBLICATION IN ANY DOCUMENT OR USED IN THE COUNTRY OR ELSEWHERE IN THE WORLD before the date of filing, that is to say the subject matter has not fallen into the PUBLIC DOMAIN or formed part of the STATE OF THE ART. The standard is ABSOLUTE: publication or use anywhere in the world destroys novelty. It is tested by the examiner under section 13, and sections 29 to 34 preserve the applicant in the limited cases of publication without consent, communication to Government, a notified exhibition or a learned society paper followed by an application within twelve months, and public working for reasonable trial.

INVENTIVE STEP. Section 2(1)(ja): a FEATURE OF AN INVENTION involving TECHNICAL ADVANCE as compared to existing knowledge OR HAVING ECONOMIC SIGNIFICANCE OR BOTH, and making the invention NOT OBVIOUS TO A PERSON SKILLED IN THE ART. The second limb is indispensable. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, asks whether the thing lies SO MUCH OUT OF THE TRACK of what was known as not naturally to suggest itself, and whether it is a mere WORKSHOP IMPROVEMENT a skilled workman could reach without inventive faculty.

Step 2: where and how, sections 7 and 9. An application in the prescribed form is filed at the appropriate office of the four, with either a PROVISIONAL or a COMPLETE specification. A provisional secures a PRIORITY DATE and must be followed by a complete specification WITHIN TWELVE MONTHS, failing which the application is DEEMED ABANDONED under section 9(1). A declaration as to inventorship is required by section 10(6), and section 8 requires a statement and undertaking about applications for the same invention filed OUTSIDE INDIA, which must be kept updated.

Step 3: publication, section 11A. No application is open to the public before EIGHTEEN MONTHS from the date of filing or priority, whichever is earlier, after which the Controller publishes it. Early publication may be requested. From publication the applicant has LIKE PRIVILEGES AND RIGHTS as if the patent had been granted, but section 11A(7) forbids any proceedings for infringement until grant.

Step 6: the first examination report and putting the application in order, section 21. The objections are communicated as a FIRST EXAMINATION REPORT. The application must be PUT IN ORDER FOR GRANT within the prescribed period, which the 2016 Rules REDUCED FROM TWELVE MONTHS TO SIX, extendable by three on request. Failure means the application is DEEMED ABANDONED. Under the 2024 Rules the section 8 information is to be furnished within three months of the report.

Step 7: the Controller's powers on the application, sections 15 to 20. He may REFUSE the application or require amendment under section 15; allow a DIVISIONAL application under section 16, clarified by rule 13(2A) inserted in 2024; DATE or POST-DATE under section 17; deal with ANTICIPATION under sections 18 and 19; and direct SUBSTITUTION OF APPLICANTS under section 20. Section 80 requires him to give a HEARING before exercising any discretion adversely.

Step 8: pre-grant opposition, section 25(1). After publication and before grant, ANY PERSON may oppose by written representation on the eleven statutory grounds. Since the 2024 Rules the Controller must first decide the MAINTAINABILITY of the representation.

Two ways an application dies without ever being refused

It is worth noticing that most applications that fail are never REFUSED at all. Section 11B(4) deems an application WITHDRAWN if no request for examination is filed in time. Section 9(1) deems it ABANDONED if a complete specification does not follow a provisional within twelve months. And section 21(1) deems it abandoned if it is not put in order for grant within the period allowed after the first examination report. In each case the applicant has simply run out of time, there is no appealable order, and nothing can be done except to file afresh, by which time his own publication will usually have destroyed novelty.

The timeline in practice

Dates make the procedure intelligible, so work one through. An applicant files a complete specification on 10 JANUARY 2026. His PRIORITY DATE is 10 January 2026 and, if he is granted a patent, its TERM will run to 9 January 2046 under section 53.

Conclusion. An INVENTION under section 2(1)(j) is a NEW PRODUCT OR PROCESS INVOLVING AN INVENTIVE STEP AND CAPABLE OF INDUSTRIAL APPLICATION. NOVELTY under section 2(1)(l) is absolute and measured against publication or use anywhere in the world; INVENTIVE STEP under section 2(1)(ja) requires technical advance or economic significance AND non-obviousness to the person skilled in the art, tested as in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries; INDUSTRIAL APPLICATION under section 2(1)(ac) requires only capability of being made or used in an industry; and sections 3 and 4 exclude whole classes besides, Novartis AG v. Union of India describing section 3(d) as a second tier. REGISTRATION runs from an application by the TRUE AND FIRST INVENTOR under section 6, with a provisional or complete specification under sections 7 and 9, publication at EIGHTEEN MONTHS under section 11A, a REQUEST FOR EXAMINATION now within THIRTY ONE MONTHS under section 11B, examination under sections 12 and 13, a first examination report to be answered within SIX MONTHS, pre-grant opposition under section 25(1), GRANT under section 43 dated back to filing, post-grant opposition within twelve months under section 25(2), renewal for TWENTY YEARS, triennial FORM 27 statements, and appeal to the HIGH COURT under section 117A.