Defining inventive step
William James once said: “Genius means little more than the faculty of perceiving in an unhabitual way.” His observation seems particularly apposite in the context of determining inventive step in patent examinations. This plays a critical role in deciding the fate of a patent application. The various tests for assessing obviousness take into account the nature of the invention, the current state of the art and whether the invention would be obvious to a person skilled in the art. Section 2(1)(ja) of the Patents Act sets out the criteria for patentability and defines ‘inventive step’ as “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art”.