Fisheries Economics

7.8.3 Non-obviousness or Inventive Requirement

It is defined as follows: “A patent may not be obtained….. if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a while would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains”.

While passing judgement in the Graham Vs John Deere case, the USA Supreme court stipulated four criteria for non-obviousness. They are:

1) First, the scope and content of the prior art should be ascertained

2) Second, the level of ordinary skill in the particular field should be assessed.

3) Third, the difference between the prior art and the claims at issue is examined.

4) Finally, a determination is made as to whether these differences would have been obvious to a lay person in the applicable field at the time.

In other words a patent is considered obvious if a person could have created the invention with information known to the public at large.

Going by this view, MNCs can patent genes as the biological matter was not considered earlier for this purpose. A plant and its medicine use is known to indigenous people. Now, the plant can be taken to lab, the active ingredient is separated and patented. Thus, the resource and the knowledge of the indigenous people get stolen in a biological way.