Novel and non-obvious innovations that have an industrial application are patentable in India. The Indian Patent Act does define the term “patent” as any patent granted under this Act. Instead, it has only provided for inventions that are not patentable as under Chapter III of the Act.
Any invention, regardless of satisfying the novelty, utility, and nonobviousness test, if it falls within any criteria under Sections 3 and 4, is not patentable.
Section 3 of the Indian patent Act specifically mentions sixteen exclusions that cannot be patented in India.
This article will articulate a detailed list and examples of nonpatentable inventions in India.
Contrary to natural laws:
A frivolous invention or one contrary to established natural laws is not patentable.
According to this clause, a perpetual motion machine or machine with more than 100% performance cannot be patented.
Contrary to public:
An invention whose commercial exploitation is contrary to public order and morality or which causes serious prejudice to humans, animals, plants, or the environment is not patentable.
Hence, a device for housebreaking or a gambling machine cannot be granted a patent.
An application that helps one hack to email accounts of others can also not be patented.
Terminator gene technology cannot be patented as it severely threatens animal and plant life and the environment.
Only genetically modified micro-organisms that do not fall under section 3 (b) are patentable.
Mere discovery of a scientific principle:
The mere discovery of a scientific principle or the formulation of an abstract theory, or the discovery of any living thing or non-living substance occurring in nature is a non patentable invention.
Hence, discovering an existing phenomenon like natural gas or an element cannot be patented.
It is for the simple reason that the discovery of the phenomenon or the theory is not an invention, i.e., neither a new process nor a new product but a mere finding.
Mere discovery of a new form of a known substance:
Similarly, the mere discovery of any new form of a known substance does not result in the enhancement of the known efficacy of that substance or mere discovery of any new property or new use for a known substance, or of the mere use of a known process, machine or apparatus unless such process results in a new product or employs at least one new reactant cannot be patented.
The crystalline forms of a known substance cannot be filed for a patent grant under this exclusion.
New uses of the plant neem cannot be patented as per this clause.
However, salts, esters, ethers, polymorphs, metabolites, pure forms, particle size, isomers, complexes, combinations, and derivatives of a known substance with enhanced efficacy are patentable.
Substances obtained by a mere admixture:
Clause (e) excludes substances obtained by a mere admixture resulting only in the aggregation of the properties of the components, is not patentable, nor is the process by which such substance is obtained. However, synergistic formulations are patentable.
It means an admixture where one drug increases the other’s effectiveness will be considered an innovation to be patented under the Act.
A novel synergistic herbal formulation for diabetes cure comprising extracts from selected Indian medicinal herbs was granted patent number 239060 in 2010.
Mere arrangement of known devices:
The mere arrangement, re-arrangement, or duplication of known devices, each functioning independently of one another in a known way, is excluded under clause (f).
Hence, a torch attached to a bucket or a clock and a radio in a single closed cabinet cannot be patented as they work independently. But, if such an arrangement results in different use of the combined product, it is patentable.
Method of agriculture or horticulture:
A method of agriculture or horticulture, for example, a new type of soil or an original process of cultivating wheat, cannot be patented. But this clause does not exclude filing for a patent of a new, better working agricultural equipment.
Treatment method of humans or animals:
Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic, or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
For example, the process of carrying out a surgery or blood transfusion is a non patentable invention.
It is important to note that processes, in this case, are not considered inventions. However, systems and apparatuses are still regarded as patentable subject matter.
Plants and animals:
Plants and animals as a whole or parts thereof other than micro-organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals is another exclusion under clause (j).
Examples of it include Clones of animals and new varieties of plants, a process for producing plants or animals if it consists entirely of natural phenomena such as crossing or selection, virtual biological process, etc.
Mathematical, business, or computer programs:
A mathematical method, business method, algorithm, or computer programme per se is not patentable under clause (k).
The exclusion of computer programmes per se has raised various questions about software patentability in India in the growing technological and digital world.
Therefore, a computer program code can be protected under the Copyrights Act as a “literary work” but is not patentable. However, a new calculating machine or combination of hardware and software is patentable.
Copyrightable works:
A literary, dramatic, musical, or artistic work or any other aesthetic creation, including cinematographic works and television productions, comes under the Copyrights Act protection and therefore is left out of the purview of the Patents Act.
Performing mental Act:
A mere scheme or rule or method of performing a mental act or method of playing a game, for example, a method of learning a language, solving a crossword puzzle, etc., is excluded from the Patent Law.
However, novel apparatus for playing a game or carrying out a scheme is patentable.
Presentation of information:
The Patent Act does not cover the presentation of information in any manner or method by spoken words, visual displays, diagrams, or symbols.
Other sub-sections:
The topography of integrated circuits is also not patentable. They can only seek protection under the Semiconductor Integrated Circuit Layout-Designs Act.
Inventions of traditional knowledge, aggregation, or duplication of known properties of the traditionally known component or components are not patentable. However, any value-addition using traditional knowledge leading to a new process or product, which is novel with inventive steps and industrial applicability, can be patented.
For example, the extraction of a natural insecticide Azadirachtin from Neem.
Atomic energy inventions:
Section 4 excludes inventions relating to atomic energy falling within Section 20(1) of the Atomic Energy Act 1962.
It says that no patents shall be granted for inventions that, in the opinion of the Central Government, are useful for or relating to the production, control, use, or disposal of atomic energy or the prospecting, mining, extraction, production, physical and chemical treatment, fabrication, enrichment, canning or usefulness of any prescribed substance or radioactive substance or the ensuring of safety in atomic energy operations.
The Sec 4 exclusion makes it evident that public interest is important to our patent lawmakers. This exclusion ensures that any invention out of atomic energy, if patented, can have a disastrous effect on the public.
Food for thought:
The failure of the parliament to define the term “patent” and explicitly to provide for “inventions not patentable” has mainly been criticized.
Section 3 of the Act has been in question for various ambiguities, especially in the cases of computer program patentability and pharmaceutical industries.
The IP authorities in India did realize the growing need to define computer programmes per se and their patentability. They published its revised “Guidelines for Examination of Computer-Related Inventions” in 2017. The lawmakers must address this lacuna in the Act to avoid further confusion and contradictions.
