Meaning of an anticipation of invention and what it constitutes in India

Saptaswara Chakraborty| North Eastern Hill University| 5th July 2020 

Introduction

Any invention that claims for a patent can only acquire so if it is found that such an invention has never been made. While assessing the patentability of any invention, novelty and uniqueness is an important criteria. Novelty is assessed on the basis of it not being anticipated. A patent represents a quid pro quo angle wherein the patent holder has a dear advantage over his invention as a result of which he possesses a monopoly over its business. 

Meaning of anticipation

An anticipation of an invention under the patent law refers to the prior invention or the disclosure of the claimed invention by another or it can also be the disclosure of the claimed invention by the inventor for an invention sale, publication or an offer to sell prior to the inventors application for a patent. If it is known to someone else about the invention or if it has been used then such an invention would not be eligible for a patent. Anticipating therefore is considered as an important parameter for validating a patent. In the case of Lewer Marine Inc. v. Barient Inc. (3 U.S.P.Q. 2d 1966(Fed. Cir. 1987 )) it was stated “that which would literally infringe if later in time anticipate if earlier than the date of invention.” For the anticipation to happen, it is necessary that the prior publication must also contain the teachings through which the invention was achieved by the successive publication. Any invention which results from the previous disclosure therefore is a product of anticipation.

Anticipation of India 

In India the determination of novelty of a patent is done u/s 2(1)(I) of the Indian Patent’s Act 1970. The provision states that the “new invention” means nay invention or technology which has not been anticipated in any publication work or a document or used in the country or somewhere around the world before issuing of the application with complete specialisation. The anticipation can occur anywhere in the world. It may consist of new inventions or even a new set of combination of integers that it can produce a new or important establishment of a new possibility. In India, the anticipated test can be done in the following ways: 

• Firstly, one interprets the claim and then compares such a claim to that of a patent. If on comparison, it is found that the claim consists of the exact elements as that of a prior invention, then it can be said that ;the claim has been patented. 
• Secondly the prior innovation may contain certain terminologies which may be difficult for people to understand. Under such a situation, the disputed innovation may decide that the only way to avoid anticipation is through a demonstration. Such a demonstration could prove that even after a disclosure, the prior innovation was rather not enabling. 
• Another way of anticipation is through by showing that the result of the disputed innovation falls within the scope of the prior innovation that is it describes of what is achieved and therefore subject to anticipation. 

Laws pertaining to Anticipation in India

The Indian Patents Act mentions anticipation in Section 29 to 34. The Indian Patents Act does not specifically defines anticipation rather it mentions the provision along with the exceptions under which the Patent application can be filed despite it having undergone a public disclosure and therefore such disclosures would to account for it to be anticipated.

• Anticipation by previous publication( Section 29)– For a prior investment it must have been published as a specification filed in order to obtain a patent in India on or after 1^st of January 1912. Similarly it must be published in India or even elsewhere. However there are certain exceptions to it, They are: Firstly if the successive applicant proves that the publication of his matter was done without his consent and secondly that the applicant must prove that he filed for an application as soon as he heard about it.
• Anticipation by a previous communication( Section 30)– If such an invention has been communicated to the Government or any person within the Government for the purpose of investigation of the invention, then during such a time n exception can be made.
• Anticipation by public display(Section 31)– If the invention has been displayed in an exhibition to which the invention was displayed after the extending of the provisions by the Central government, if the person uses such an invention without the consent of the true owner, and that if the disclosure of an invention before a learned society or for the purpose of publication of related in formation under such possible circumstances.
• Anticipation by public working(Section 32) – If the invention has been filed within 12 months after the invention has been publicly worked for a trial considering the nature of such an invention.
• Anticipation by use and publication after provisional specification(Section 33) – If such an invention has been used and published after the filing of an application then such an application would not be subjected to anticipation.