Technical Advance

1The word ‘obvious’ is directed to whether or not an advance is technically or practically obvious. (See Hallen Co v Brabantia (UK) Ltd (1989) RPC 307, p 327.) Technical advancement is an inherent characteristic of inventive step which has been recognised by the courts to be a prerequisite for satisfying the test of inventive step. (See Richardson-Vicks Inc’s Patent (1997) RPC 888, p 897 (CA); Windsurfing International Inc v Tabur Marine (Great Britain) Ltd (1985) RPC 59, p 72; Johns-Manville Corpn’s Patent [1967] FSR 327, (1967) RPC 479.) The phrase “technical advancement as compared to existing knowledge” in section 2(1)(ja) implies an advance over the state of the art, which is an essential condition to be satisfied for the grant of a patent, the absence of which can be a ground for challenge by opposition or revocation proceedings. In Genmab v Assistant Controller of Patents and Designs (2024), the Madras High Court held that “there is no basis to the conclusion that the claimed invention either lacks technical advancement over the cited prior art or that it would have been obvious to a person skilled in the art” (para 29).

2In AstraZeneca v Intas Pharmaceuticals (2020), refusing an interim injunction, the Delhi High Court held that the definition of inventive step “has two parts to it and both are inextricably linked with the other” (para 29.1), and that “A comparison of the complete specifications/descriptions of Indian genus patent i.e. IN 147 and Indian species patent i.e. IN 625 shows that there is no technical advance of the latter over the former.” (para 29.3) The Court held that “if this information was not available at the time the application for grant of patent was filed, then, this cannot be taken into account, at this juncture, by the plaintiffs in support of their plea that IN 625 involved an inventive step” and that “There is no clue in IN 625 of an unknown technical effect on its priority date.” (para 30) It held that “post priority date evidence which has been furnished in Dr. Washburn’s affidavit to show technical advance can only be taken into account to confirm the existence of technical effect which is found embedded in the specification of IN 625 and is capable of being understood by a skilled person having common general knowledge and not to rely upon the same to establish its effect for the first time” (para 30.4).

3In Ab Initio Technology v Controller of Patents (2025) the Madras High Court held that “The use of the phrase ’technical advance over existing knowledge’ in Section 2(1)(ja) underscores the necessity to test the existence of technical advance with reference to the knowledge existing on the priority date.” It held that “As a result of the use of the disjunctive ‘or’ before ‘having economic significance’, it is evident that ’technical advance over existing knowledge’ is not an essential pre-requisite and that economic significance may be established instead; subject, however, to the overarching requirement of the feature of the invention not being obvious to a PSITA” (para 44).

4Where a technical advance over the closest prior art is made out, the test of inventive step is satisfied. In Avery Dennison v Controller of Patents and Designs (2022) the Delhi High Court held that “If the same demonstrates a technical advancement over the prior art on the priority date of the application, then the patent would be liable to be granted” (para 18), and on the facts the Court held that “The improvement in the present case between the prior art and the subject invention is clearly decipherable” and that “The closest prior art identified is D2 and the subject application discloses a technical advancement in comparison with the closest prior art and the features comprising inventive step are not obvious to a person skilled in the art and therefore, the subject patent application satisfies the test of inventive step.” (para 39)

Known Properties do not constitute technical advance

5An effect that follows from the known properties of known ingredients is not a technical advance. In The Zero Brand Zone v Controller of Patents and Designs (2024) the Madras High Court said that “even assuming that the below detection level carbon emissions, as indicated in the SGS report, does constitute a technical advancement, it has to be examined whether it would be obvious to PSITA”, and held that “The claimed invention makes use of ingredients which are not only traditionally known, but known to have carbon neutral effects. Therefore, the reduced carbon footprint due to the usage of these ingredients in the lamp is merely incidental and is because of the known properties of the ingredients used therein.” (para 18)

6An asserted technical advantage unsupported by comparative data against the cited prior art does not establish technical advance. In Sulzer Mixpac v Assistant Controller of Patents and Designs (2026) a Division Bench of the Delhi High Court reproduced the reasoning of the learned Single Judge, which was that, on “the technical advantages of the said invention in that the pressure loss is lesser”, “there is no data which has been provided with respect to prior art Dl-D4 in this regard or a comparative assessment of the functionality element. The only comparison which has been done is with the prior art EP 1426099B1.” (para 12) The Bench found “no error in the decision of the learned Single Judge upholding the order of the learned ACPD rejecting the appellant’s application for patenting the subject invention.” (para 37)