Public Policy and Patent Eligibility

It is an established fact that the Intellectual Property regime and the granting of Intellectual
Property Right protection plays an important role in promoting innovation and encouraging
economic growth. It ensures that the innovators, creators and inventors are incentivized to lead
the development in various facets. But there is an important focus of the various IP regimes to
ensure that the grant of IPR does not cause any harm to the public at large. This has led to the
formulation of certain restrictions on the eligibility criteria of patent claims.
These are generally referred to as policy-based exclusions which have evolved differently in
different jurisdictions and IPR regimes and each policy operates to exclude a patent for subject
matter, irrespective of conclusion of non-obviousness. These exclusions are usually based on a
‘higher principle’ than the reward to someone for introducing an article or process that did not
previously exist or some other clearly defined parameter for the denial of the patent. TRIPS
Agreement has not set an articulated higher bar for the exclusions other than the requirement of
patent protection for all areas of technology, but it permits the exclusion of subject matters based
on necessity of the protection of public order or morality and several other subject matter under
article 27.
Article 27 under paragraphs 2 and 3 provides the certain claims that may be excluded from
patentability. The provision states:
“…2. Members may exclude from patentability inventions, the prevention within their territory
of the commercial exploitation of which is necessary to protect ordre public or morality,
including to protect human, animal or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the exploitation is
prohibited by their law.
3. Members may also exclude from patentability: (a) diagnostic, therapeutic and surgical
methods for the treatment of humans or animals; (b) plants and animals other than micro-
organisms, and essentially biological processes for the production of plants or animals other
than non-biological and microbiological processes. However, Members shall provide for the
protection of plant varieties either by patents or by an effective sui generis system or by any
combination thereof. The provisions of this subparagraph shall be reviewed four years after the
date of entry into force of the WTO Agreement…”
The Indian Patent Act, 1970 lays down the grounds for the exclusion of patentability of certain
inventions. Several of these are based on public policy and aims to prevent any harm to the
public order, morality and safety. These are:
1) Any invention in contravention to the well-established natural laws
2) Any invention of which the primary or intended use or commercial exploitation relies on
possible harm to public order or morality or which could cause prejudice to life of
human, animal, plant life or environment.
a. Any device, apparatus or machine or method for committing theft/ burglary
b. Any machine or method for counterfeiting of currency notes
 c. Any device or method for gambling
d. Any invention that may cause prejudice to life of human, animal, plant life or
environment.
e. An invention that are primarily intended use of which is likely to violate the well
accepted and well settled social, cultural, legal norms of morality such as a
method for cloning, genetic modification to induce ‘superhumans’ etc.
f. Any device intended for disturbing public order
g. Inventions with the purpose of commercial exploitation of to life of human,
animal, plant life or environment such as method of creating artificial food,
adulteration of food etc. However, such inventions, if do not cause, a serious
prejudice may be patentable such as pesticides etc.
3) A method of agriculture or horticulture
a. A method for producing a plant, even if it involves a modification of the
conditions of natural phenomena.
b. A method of producing better soil for the purpose of higher yield.
c. A method of producing mushrooms.
d. A method of cultivation of algae.
4) Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or
other treatment of humans or treatments of similar or different nature for animals in order
to render them free of disease or increase their value
a. Medicinal methods: process of administering medicines orally, by injections or
topically or through a dermal patch
b. Surgical methods: stitch-free incision for cataract removal
c. Curative methods: a method od cleaning plaque from teeth
d. Prophylactic methods: methods of vaccinations
e. Diagnostic methods: determination of the general physical state of an individual,
diagnosis of history and investigation of illness
f. Therapeutic methods: prevention, treatment and cure of illness
5) Business method
Business methods are non-patentable in nature. The term ‘business methods’ includes
a wide gamut of activities that maybe based on innovation or development of new
techniques for the promotion or commercial advancement of a business or a new
business model. These cannot be patented as innovation shall be generally expected
in businesses and should be kept in the public domain.
6) An invention that is based on traditional knowledge or serves as a rendition of the
traditional knowledge
7) Any invention which is based on or related to atomic energy as per Atomic Energies Act-
This restriction is covered under Section 4 of the Patent Act.
All matters related to atomic energy have been made ineligible for patent protection
as the misuse of the technology may have widespread and detrimental consequences.
 The security of the nation as well as the people of the country is put at stake by the
grant of such a patent.
8) Scientific or mathematical formulae
Scientific and mathematical formulae should be kept in the public domain as they
help in efficiently reaching solutions to problems which have real world applications
for the benefit of the general populous.