DIFFERENCE BETWEEN INVENTION AND DISCOVERY IN IPR
Intellectual Property rights have become significantly conspicuous on the legal horizon of India. It includes Copyrights Act, Patents Acts and Trademarks Acts as well. Patents Act includes various concepts like Discovery, Invention, etc. Discovery and invention are the two terms that are often misunderstood but in reality, these two have completely different meanings. Both of these terms, discovery, and invention mean to bring something new into notice or but have different meanings at the grass-root level.
The Patents Act, 1970
An invention is defined under Section 2(j) of the Patents Act, 1970 as “a new product or process involving an inventive step and capable of industrial application.” Inventive Step here means that the invention involves some kind of technological advancement which was not there before. Industrial applicability means that the invention must have some applicability that can be used in the industry.
Section 3(d) of the Act, provides for inventions that are not patentable under the Act. The Act also specifically states that discoveries are not patentable under the Act. Section 3 (c) and (d) of the Act states that the mere discovery of a new substance or scientific principle, etc is not patentable. Therefore, according to the Patents Act, an invention that is either related to a product or a process that is new and has industrial applicability, and also involves an inventive step, can be patented under the act.
The act of searching and exploring something that already exists in nature or the environment but was never really recognized before is called ‘discovery.’ ‘Discover’ refers to:-
- To see, get knowledge of, learn of, find, or find out; gain sight or knowledge of (something previously unseen or unknown): to discover America; to discover electricity.
- To make known; reveal; disclose.
For example, fossils.
Discovery under the Patents Act
The Act clearly states that discovery is not patentable and is excluded from patent protection. Section 3 (c) and (d) clearly states that mere discovery of something that already exists in nature is not patentable under the Act because such discovery is not new and hence would not be considered as an invention. Under the Patents Act, discoveries are not patentable.
The reason for a discovery being non-patentable under the Act is that discovery of a new form, substance, etc is not a new thing. It already existed in nature and hence it cannot be treated as a new invention since it did not involve any inventive steps, skills, etc..
The creation or designing of something or the process of creating or designing something that never existed before, by using someone’s intellect or knowledge, skills, etc is called an ‘invention’.
For example, the creation of television or cell phones never existed before. These were created by scientists by using their own ideas and experiments. However, it is to be noted that the parts which were used in creating such an invention already existed before but the scientists used such parts in creating something new and that is called an invention.
- An act of inventing; something fabricated as a false statement.
Invention under the Patents Act
The Patents Act, 1970 defines an invention as a new product or a process that has an inventive step and has some industrial applicability. For an invention to qualify to get a patent, it has to fulfill certain conditions which are as follows:
- It must be new or novel;
- It must have industrial applicability;
- It must involve some inventive step;
- It shall not fall under the ambit of Sections 3 and 4 of the Act.
If the above-mentioned conditions are fulfilled then the said invention can be patented under the Act.
Section 3 & 4 of the Act deals with inventions that cannot be patented. The following are not patentable under the act:
- Inventions that are frivolous and contrary to the natural laws;
- Inventions that go against public morality;
- Inventions that are a mere discovery of something that already exists in nature;
- The mere discovery of a form already existing in nature does not lead to enhancement of efficacy;
- Mere admixing of mixtures leading to the aggregation of properties are non-patentable;
- Mere aggregation or duplication of devices working in a known way is not an invention;
- Horticulture or agricultural method is non-patentable;
- Medicinal, curative, prophylactic, diagnostic, therapeutic for treating diseases in humans and animals are non-patentable;
- Essential biological processes for the production or propagation of animals and plants is not an invention;
- Simple mathematical or the business or the computer programs are not an invention;
- Aesthetic creation is not an invention;
- Mental act, rule, or method is not an invention;
- Presentation of information is non-patentable;
- The topography of integrated circuits is non-patentable;
- Traditional knowledge is not an invention;
- Atomic-energy inventions are non -patentable.
Section 4 deals with inventions relating to atomic energy that is also not patentable under the Act.
Correlation between discovery and invention
Let’s take the example of the telescope and the mountains of the moon. The telescope was invented by a Dutchman, an eyeglass maker. It was because of the invention of the telescope that, Galileo Galilei was able to look far enough into the sky to discover the mountains of the moon. Galileo did not invent the mountains of the moon but rather he discovered them with the help of invention i.e., the telescope.
Discoveries can also lead to inventions. For example, Benjamin Franklin discovered the electrical effects of lightning which further led him to invent the lightning rod which is still in use and helps in making buildings much safer during thunderstorms. Therefore, inventions and discovery, sometimes, correlate with each other.
Difference between Discovery and Invention
- Prior existence: Discoveries are something which already existed but we did not have the knowledge about the same till it was recognized, whereas inventions, on the other hand, are the things which never existed before but only the parts or the things which were used in creating such an invention, existed before.
- Occurrence: discoveries is natural; however, inventions are human-made of things or objects.
- Involves: Discoveries involve exploration whereas inventions involve experimentation.
- Originality: Although both discovery and invention are considered to be ‘new’, since discovery is related to the findings of something this already existed in nature.The invention is related to the creation of something new
- Patentability: A discovery is not patentable, whereas, an invention is patentable.
Case Laws 
Strix Ltd v Maharaja Appliances Ltd
The Delhi High Court granted interim injunction restraining Maharaja Appliances from manufacturing and marketing Maharaja Whiteline electric kettle Model No EK 172 as it infringed Strix’s patent (IN 1,92,511, US 6,080,968). In granting injunction, the Court made two critical observations on why Maharaja failed to discharge its burden of raising a ‘creditable challenge’ to the validity of the Strix patent.
First, the court observed that the defendant failed to place on record some acceptable scientific material, supported or explained by the evidence of an expert, that the patent is prima facie vulnerable to revocation. Secondly, the court observed that the burden on the defendant to show that it has put forward a creditable challenge will be greater on account of the fact that there was n opposition filed to challenge Strix’s patent.
With the evolution, the world has seen many changes and these changes have affected our lives so much in different ways. The major reason for these changes is discoveries and inventions of various things. As we know that they both are inter related and they are helpful a lot as well. It is just because of discoveries and inventions that our lives are getting easier and easier and helping the human race to be more productive.
 The Patents Act, 1970
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