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Patent criticality
The specification never says what problem this solves
Why does the background section matter?
Inventive step is argued as a story: this was the problem, this is what the field taught, this is why our solution was not obvious. If the specification never states the problem, that story has to be invented years later under objection - and it looks invented.
What a useful problem statement does
It fixes the technical field, it fixes what the skilled person was trying to achieve, and it makes the effect of your difference measurable. That is the whole architecture of an inventive step argument, and it is far more credible when it was written before anyone raised an objection.
It also constrains the prior art. If the problem is stated precisely, an examiner citing a document that was solving something else has to explain why the skilled person would have looked at it.
And what a careless one does
Overstating the problem, or describing the prior art as though it already almost solved it, hands the examiner an obviousness argument written in your own words. Background sections that praise the closest prior art are surprisingly common and always regretted.
Section 2(1)(ja) of the Patents Act 1970 requires technical advance compared to existing knowledge - which presupposes a stated problem.
Write the background last, once the claims are settled, and write it as narrowly as honesty allows.
Using the background to survey the whole field. You are building the examiner's citation list for her.
Sentences in your own background that begin it is known that.
State the technical problem in one sentence, with a number in it. If you cannot put a number in it, the effect may not be measurable enough to argue.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
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Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.