Idea Patenting

The subject matter of an idea shall satisfy a numbers of parameter to get a patent protection. The conditions of patenting an idea are-
a. It shall be ‘novel’.
b. It shall involve an ‘inventive step’ (followed by India and Europe) or it shall be ‘non-obvious’ (followed by United States) to a person skilled in the art.
c. There must be some ‘industrial application’ (followed by India and Europe) or ‘usefulness’ (followed by U.S.)
Now, in India and in Europe ‘use claim’ in a patent drafting is not allowable while in US the use claim is allowed for Utility patent application. On the contrary the definition of ‘industrial application’ as defined under section-2(1) (ac) of Indian Patent Act, 1970 (amended) “capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry”. Similarly, according to Article-57 of the European Patent Convention, 1973 defines ‘industrial application as “an invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture”. So as per applicable patent law in India and Europe the subject matter of a patent application shall be capable or susceptible of being ‘used’ in the industry.
Coming to the US patent law where there are 3 types of utility of an Idea that has to be satisfied at the time of filing ‘utility’ patent and these utilities are-
a. There must be a ‘specific’ utility of that patent application
b. There must be some ‘credibility’ and,
c. That patent application shall have some ‘substantial utility’
Carefully if you go through the matter you will observe that India and Europe directly is not allowing use claim in the specification, but in an other way round India and Europe allows product claim by process where there are two probability exists. First of all that process might be known to the prior art and secondly the process might be a new idea at all, but in both cases product is patentable. Product patent is basically granted because it shows some industrial use or application. Subsequently, a product patent by process may be granted for new use although there is another product which uses the same process. On the other hand a product by process may be granted although the same products exist which uses the same process, but later product shall show substantial modification or improvement of the former product. You can get a fresh product patent if you incorporate some new technologies into old product.
Now, in my opinion under section-2(1) (ac) and Article-57 of the Indian and European Patent Law there is a loophole which is capable of granting a product patent on the basis of different use. It is mentioned above that India and Europe dose not allow use claim in the specification, but in directly the product is basically made only for use. We don’t mention the term ‘use’ in the specification. What we claim in the specification is that the independent claim for product with the help of defendant process claim or independent process claim.