A process must be capable of being used in the industry to satisfy this requirement. Uncertain, vague, futuristic or non-specific use is not considered as valid use. The same is the case with insubstantial or non-credible use of a product or process. In a case between Cipla and Roche, the Delhi High Court reviewed some Indian and foreign cases relating to the utility or industrial applicability requirement and observed that an invention must be commercially viable. It must have commercial use, and commercial success need not be proved. At a basic level, the invention must have a practical use and has to be useful for the purpose claimed in the patent specification.
Nothing more will be required to prove the utility of an invention for patentability. In another case between MSD and Glenmark, the Delhi High Court applied principles for industrial applicability laid down by the UK Court of Appeals to arrive at the conclusion that Sitagliptin, a pharmaceutical compound, is industrially applicable. The principles cited by the Court are as follows:
- The patent must disclose “a practical application” and “some profitable use” for the claimed substance so that the ensuing monopoly “can be expected [to lead to] some… commercial benefit”;
- A “concrete benefit”, namely the invention’s “use … in industrial practice” must be “derivable directly from the description”, coupled with common general knowledge;
- A merely “speculative” use will not suffice, so “a vague and speculative indication of possible objectives that might or might not be achievable” will not do;
The patent and common general knowledge must enable the skilled person “to reproduce” or “exploit” the claimed invention without “undue burden”, or having to carry out “a research program”; …” By applying the aforestated principles, the Court concluded that Sitagliptin is industrially applicable even if it cannot be put to practical use due to an ineffective carrier.