Non-obviousness (inventive step) is the requirement that a patentable invention must involve a feature that represents a technical advance or has economic significance, and that is not obvious to a person skilled in the relevant art. Under Indian law, "inventive step" is defined in Section 2(1)(ja) of the Patents Act, 1970, and constitutes one of the three essential patentability criteria alongside novelty and industrial application.
Legal definition
Section 2(1)(ja) of the Patents Act, 1970 (inserted by the 2005 Amendment) provides:
Section 2(1)(ja): "Inventive step" means 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.
This definition establishes a two-limb test. The invention must: (1) involve a technical advance compared to existing knowledge or have economic significance (or both), and (2) not be obvious to a person skilled in the art.
The Indian definition is distinctive in including "economic significance" as an alternative to "technical advance." Under the TRIPS Agreement (Article 27), inventive step may be deemed synonymous with "non-obvious," but India's formulation creates a broader ground — an invention that has economic significance but no technical advance may still satisfy the inventive step requirement if it is not obvious.
The hypothetical "person skilled in the art" is the benchmark. This is not an expert or an inventor, but an ordinarily skilled person working in the relevant technical field, with access to the prior art but without the benefit of hindsight knowledge of the claimed invention.
How courts have interpreted this term
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries [(1979) 2 SCC 511]
The Supreme Court held that a patentable invention must show an inventive step — it must not be obvious to a person skilled in the art. The Court established that the test for obviousness is whether the invention, having regard to the prior art, was obvious to a person of ordinary skill in the relevant field. If the invention is a mere workshop improvement or an obvious combination of known elements, it lacks inventive step.
Novartis AG v. Union of India [(2013) 6 SCC 1]
In the context of pharmaceutical patents, the Supreme Court examined inventive step alongside Section 3(d) (excluding new forms of known substances unless they demonstrate significantly enhanced efficacy). The Court held that the beta crystalline form of Imatinib Mesylate did not demonstrate enhanced therapeutic efficacy over the prior art compound, effectively finding insufficient inventive step in the pharmaceutical context.
Ferid Allani v. Union of India [(2019) Delhi HC]
The Delhi High Court addressed inventive step in the context of software-related inventions. The Court held that a computer-implemented invention can have inventive step if it solves a technical problem with a technical solution that goes beyond routine programming. The mere automation of a known manual process on a computer does not satisfy the inventive step requirement.
Why this matters
Inventive step is the most frequently contested patentability criterion in India and the most common ground for refusal of patent applications. While novelty is a binary question (is the exact invention disclosed in prior art?), inventive step requires a qualitative assessment of whether the advance over prior art is significant enough to merit a 20-year monopoly.
For patent applicants, demonstrating inventive step requires identifying the closest prior art, articulating the technical problem that the prior art failed to solve, and explaining why a person skilled in the art would not have arrived at the claimed solution without inventive effort. Secondary considerations such as long-felt need, commercial success, unexpected results, and teaching away in the prior art can support a finding of inventive step.
For patent challengers, obviousness is the strongest weapon after lack of novelty. Even if no single prior art reference anticipates the claim (meaning the invention is novel), a combination of prior art references may render the invention obvious. The challenger must demonstrate that the person skilled in the art, confronted with the same technical problem, would have been motivated to combine the prior art teachings to arrive at the claimed invention.
Related terms
Broader concepts:
Related examination concepts:
Frequently asked questions
What is the difference between novelty and inventive step?
Novelty requires that the invention is not identically disclosed in any single prior art reference. Inventive step (non-obviousness) requires that the invention, even if not anticipated by a single reference, would not have been obvious to a person skilled in the art having regard to the overall state of prior art. An invention can be novel yet obvious if it represents a straightforward combination of known elements.
Does economic significance alone satisfy inventive step in India?
Potentially. Section 2(1)(ja) states that inventive step involves a feature with "technical advance... or having economic significance or both." The disjunctive "or" suggests that economic significance alone, combined with non-obviousness, may suffice. However, this interpretation has not been definitively tested in the Supreme Court.
What is "person skilled in the art"?
The person skilled in the art is a hypothetical figure used to assess non-obviousness. This is a person with ordinary knowledge and skill in the relevant technical field, having access to the prior art as of the priority date. This person is neither an expert nor a novice — they represent the average practitioner in the field.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.