A PROJECT

ON
ANTICIPATION OF PREVIOUS PUBLICATION
SUBJECT: PATENT LAW

SESSION: 2023-24

SUBMITTED ON: 28 OCTOBER 2023

SUBMITTEDBY: SUBMITTED TO:

Mr. Rahul Bansiwal Dr. Gunjan Sharma

Roll No. 53 [Faculty Of Patent Law]
Class - VII Semester
Section - A

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN

JAIPUR
 ANTICIPATION OF PREVIOUS PUBLICATION

DECLARATION

I,Rahul Bansiwal, hereby declare that thr project titled “Anticipation of Previous
Publication” is based on the original research carried out by me under the guidance and
supervision of Dr. Gunjan Sharma. The interpretations put forth are based on my reading and
understanding of the original text. The book, article and website etc. which have been relied
upon by me have been duly acknowledged at the respective place in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either in this or in any university.

DATE: SIGNATURE
28 October 2023 [Rahul Bansiwal]

Roll No. 53

Semester VII-A

Page 2 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

CERTIFICATE

Dr. Gunjan Sharma Date: 28 October 2023

Faculty of Patent Law

University Five Year Law College,

University of Rajasthan, Jaipur

This is to certify that Mr. Rahul Bansiwal student of VII Semester, SEC-A of University
Five Year Law College, University of Rajasthan has carried out the project entitled
“Anticipation of Previous Publication” under my supervision and guidance. It is an
investigation report of a minor project. The student has completed research work in my
stipulated time and according to the norms prescribed for the purpose.

SIGNATURE

[Dr. Gunjan Sharma]

Page 3 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

ACKNOWLEDGEMENT

The present study relates to a comprehensive analysis of “Anticipation of Previous

Publication” to give clear underrating of the subject in broader perspective.

I am heartily grateful to, Dr. Gunjan Sharma, Faculty of Patent Law, University Five Year
Law College, University of Rajasthan, Jaipur, for having guided me through this long &
difficult journey that culminated in the present Project without whose co-operation, stimulating
inspiration, constant help, able guidance, innovative deliberations & continuous supervision
this work could not have seen the light of the day. Hence, I sincerely want to express my deep
sense of honor & gratitude towards him.

I shall be failing in my duty if I do not express my debt of gratitude to Dr. Akhil Kumar,
Director, University five-year law college, University of Rajasthan, Jaipur, for extending his
co-operation in the completion of this work.

I would also like to thank to all library staff & the remaining staff members of the Department
of Law, University of Rajasthan, Jaipur who have always extended an h& of co-operation
throughout the course of the research work.

SIGNATURE

[Rahul Bansiwal]

Page 4 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

Table of Contents

Declaration ....................................................................................................................
Certificate ......................................................................................................................
Acknowledgement.......................................................................................................

Chapter I : Introduction…………………….…………….……………….………..6
Chapter II : Concept of Anticipation…………………….……………………..….8
Chapter III : Assessment of Anticipation…..….……….…………………………10
Chapter IV: Conclusion……………...……………………………………..……..12
Bibliography………………………………………………………………….…...13

Page 5 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

CHAPTER - I
INTRODUCTION
Novelty is an important parameter to assess the patentability of any invention. Novelty is
assessed on the basis that the subject of the invention is not anticipated. Here Novelty actually
means "new compared to prior art".

For an invention to be patentable, it must be different from all published articles, known
techniques, and marketed products. The invention must not already have been made available to
the public, when the filing of the application for a patent takes place.

Here an invention literally means "finding out something which has not been found by others". A
patent represents a quid pro quo (a favour or advantage granted in return for something). As a
result the patentee gets monopoly over his invention.

Novelty is the statutory requirement that an invention is new. It refers to the newness of the
invention or the discovery of an unknown invention, which gives the inventor a competitive
advantage over the other players in the market. For instance, a drug is patented by an XYZ firm,
the patent holder is the only person who is entitled to make the product, use the process or
exploit the invention. Only XYZ can market and sell the drug, and only they are entitled to profit
from the same.

If there is no novelty in an invention, there is no consideration moving from the patentee and no
benefit is given to the public, because it adds nothing to the sum of human knowledge already
existing in the concerned field. As a result, the public is not benefited, if not, is it a detriment.
Because, if something which is in the public domain and is freely accessible to everyone is
suddenly patented, the rights of the public to use the invention are curtailed and the rights of the
original inventors are also taken away.

In the Indian Patents Act, 1970, Section 2(1)(l) explains the scope of a New Invention. It says
that an invention can be termed as a new invention if it has not been anticipated by publication in
India or abroad, before the filing of the patent application. It is the main test of Novelty of an
invention, along with other factors such as prior publication, Prior Art, etc.

Specifically, Anticipation of Invention has not been defined in the Act. However, Sections 29 to
34 provide a few situations in which inventions can be safeguarded from being called ”

Page 6 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

anticipated“. The objective of inserting such provisions in the act was to foster innovation in the
industry and allow the patentee to benefit” monetarily” from his novel creation.

Talking about the patent law, here anticipation talks about the prior invention or disclosure of the
claimed invention by another, or the inventor's own disclosure of the claimed invention sale,
publication, or offer to sell prior to the inventor's application for a patent. In simple words, if
someone else knows about or used the invention before the patent applicant applies for a patent,
then that patent applicant will not be eligible for patent.

The subject matter of a patent application can fall in the public domain and make it anticipated
via either prior publication in patent or any kind of non-patent literature, or by display in public,
use, or commercial sale. Grace period may be available in certain countries within which if a
patent application is filed then it is not considered as anticipation.

Page 7 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

CHAPTER - II
CONCEPT OF ANTICIPATION
 CONCEPT OF ANTICIPATION & TESTING OF IT
Anticipation of invention is said to occur when the claim filed for a patent includes subject
matter identical to any “prior art reference” i.e. the claim is not different from previously existing
knowledge or a previously patented invention in the said field.
Testing for Anticipation is so similar to the process of testing for infringement of a Patent that it
is sometimes said that whatever would literally infringe a claim if it came later in time,
anticipates if it came before.

 Firstly, one construes or interprets the claim to determine what exactly it means. After that,
one compares the claim to the reference claim or patent. The claim serves as a checklist, and
if every element of the claim matches the reference, the claim is said to be anticipated.
 Anticipation requires that all the elements of the disputed or anticipated claim appear in a
single reference. This is because, combining the teachings of one reference with the
teachings of another reference might be sufficiently inventive to be considered to be a new
patent.
 Also, If the prior art reference considered is a patent or a printed publication, it is considered
anticipating only if it teaches every element of the claimed invention. If a person having
ordinary skill in the art (PHOSITA) reads these published elements and is able to fill in the
aps with his expertise, and as a result, is able to arrive at the “invention” which is to be
patented by the new claim, the claim stands anticipated.
 A particular claim’s element can be mentioned explicitly or implicitly in the reference.For
example, a new claim to an inventive mousetrap requires a “flexible” spring, and a prior
publication of a mousetrap design had a spring made up of steel of certain dimensions: the
new claim can be said to be anticipated, as the previous claim had some of the inherent
characteristics of the new claim.
 Also, if a patent claims a broad genus, a reference patent that includes a single species of the
genus will anticipate the claim. For example, a claim which specifies a fuel of a 7compound
made of 10 to 50% methane. But there is a prior patent of a fuel which uses exactly 25%

Page 8 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

methane. The claim is anticipated because allowing the new patent would prevent the
practice of that one fuel combination, which is already in use. Anticipation is considered as a
parameter for rejecting or invalidating a patent since it signifies that the invention that is
claimed lacks novelty.

Page 9 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

CHAPTER - III
ASSESSMENT OF ANTICIPATION
India follows the principle of absolute novelty, the standard of which is set by both Section 2(l)
and Section 13 of the Act. According to Section 13, to qualify the test for absolute novelty, the
Invention/claim must not be anticipated by:
1. Previous Publication in India and elsewhere (S. 13(a) and 13(2))
2. Prior Claiming in India (S.13 (1)(b).
The definition of Anticipation under the Indian Patent Act is negative. This is because the statute
does not define Anticipation, but lays down exceptions to Anticipation of invention or a claim.
Section 34 of the Act, talks about the exceptions to anticipation if the circumstances are such as
those given in Sections 29 to 33 of the Act, which are as follows:
 Section 29: Anticipation by Previous Publication
For a publication to classify as prior art, it should have been published as:
1. Any specification filed for obtaining a patent in India, on or after 1st January, 1912.
2. Published in India, elsewhere and also in other documents.
The earlier publication must disclose the same device as the device which the patentee asserts
that he had invented. In such a case, the claim is deemed to be anticipated. The exceptions are as
follows:
1. Applicant must prove that the publication of his matter was done without his consent;
2. Applicant must establish that he applied for the patent as soon as the prior publication
came to his knowledge;
Also, if the invention was commercially worked in India, exception cannot be taken.
 Section 30: Anticipation by previous communication to the Government
For the purposes of investigation, if the invention has been communicated to the government or
any other person authorized by the government, then the complete specification filed shall not be
deemed to have been anticipated.
 Section 31: Anticipation by Public Display
1. If the invention has been displayed in an exhibition and/or the invention has been
described in a publication as a consequence thereof;

Page 10 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

2. It won’t be anticipation if the central government has extended the provisions of this act
to such exhibition.
3. Also, if a person uses the invention without the consent of its true owner, as a
consequence of the display in the exhibition, it won’t be Anticipation.
4. Disclosure of an invention before a learned society or the publishing of related
information in the transactions of such learned society cannot be classified as anticipation.
This means that if the invention is disclosed for private consumption of a peer group, which is
formed for the purpose of promotion of knowledge and scholarship, solely for the benefit of the
members of the society, it is not anticipation.
A grace period is given to the original inventor to file an application within 12 months of the
public display, to prevent labeling of his claim as an anticipated claim.
 Section 32: Anticipation by Public Working
Anticipation by public working could be done by the importation of a patented product into India
before the priority date the product would amount to public knowledge or public use, except
where such importation was for the purpose of reasonable trial or experiment.
To benefit from this exception, the application must be filed within 12 months after the invention
has been publicly worked for the purpose of reasonable trial and considering the nature of the
invention.
 Section 33: Anticipation by use and publication after provisional specification
If the invention has been put to use and has been published after the provisional application has
been filed, then the complete specification filed shall not be deemed to have been anticipated.
Unless the Anticipation falls under aforementioned exceptions, the claims of specifications
submitted to the controller can be rejected on the grounds of Section 13 of the Act.
It is advisable for innovators to patent their inventions, as its benefits are manifold, such as
creating reasonable barriers for entry of competitors, securing profits and prices in the market.
Also, Patents ensure that small or medium-sized firms are on a level-playing field with large
firms, due to the economic power granted by them. Thus, it is ideal that the inventor should file
for obtaining a Patent before he makes any information about the Invention known to the public
though any means, to avoid having any hassles due to anticipation of invention, during the
patenting process.

Page 11 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

CHAPTER - IV
CONCLUSION
Patent is an exclusive right granted by the Government to the inventor to exclude others to use,
make and sell an invention is a specific period of time. A patent is also available for
improvement in their previous Invention. The main motto to enact patent law is to encourage
inventors to contribute more in their field by awarding them exclusive rights for their inventions.

Patents can provide great value and increased returns to individuals and companies on the
investment made in developing new technology. Patenting should be done with an intelligent
strategy that aligns business interests to implement the technology with a wide range of options
in the search for how, where and when to patent. As an example, with a focus on international
considerations and regulations in specific countries, it is possible for a company to achieve
significant savings and improve the rights gained using patents.

Page 12 PATENT LAW

 ANTICIPATION OF PREVIOUS PUBLICATION

BIBLIOGRAPHY
 BOOK REFERENCES
1. An Introduction to Intellectual Property Rights, J. P. Mishra ,Central Law Publications, 3rd
Edition , 2023

2. Law Relating to Intellectual Property Rights, M. K. Bhandari, Central Law Publications, 6th
Edition, 2023

 WEB SOURCES
1. https://ipindia.gov.in/writereaddata/Portal/ev/sections/ps29.html#

2. https://blog.ipleaders.in/anticipation-invention-constitutes/

3. https://www.mondaq.com/india/patent/565118/anticipation-of-invention

4. https://www.lexology.com/library/detail.aspx?g=7e87a96f-c83c-42d3-bc3f-cdd486a12068

Page 13 PATENT LAW