Non Patentable Inventions

Part- VII
Section 3 (m) of the Patent Act, 1970

“a mere scheme or rule or method of performing mental act or method of playing game”.

A patent cannot not be obtained for a mere scheme or plan. In Cooper’s application, (1902) 19
RPC 53, Sir Robert Finlay said – “ you cannot have a patent for a mere scheme or plan – a plan
for becoming rich; a plan for a better government of a State ; a plan for effective conduct of
business”. Fact of the case was – one or more space were left across the printed page of a
newspaper where the paper was to be folded in order to enable the paper to be read when
folded and was held patentable.

Abram’s, re, 188 F 2d 165, the method od detecting petroleum by computing the rates of
pressure change was held not to be eligible for patent protection . However, a patent may be
granted for a means or method that put the scheme or plan into effect.

Fishburn’s Application, re, (U.K.) (1938) 57 RPC 245, a method of arranging information on a ticket
in a manner that allowed the ticket to be divided either transversely or longitudinally was found
patentable.

Pitman’s Application, 1969 RPC 646, variation in the visual significance of printed characters in
order to assist in voice productipn by a recording machine or human reader were held to be
patentable.

Rhode’s Application, 1973 RPC 243, a vehicle speedometer adopted to show “impact speed” was
found to be patentable.

Section 3(n) of the Patent Act, 1970

“a presentation of information”.

Hiller’s Application, 1969 RPC 267, it was held –

“the issuance of instructions to a gang of workmen to dig excavations and lay conduits as
indicated on a plan of a site cannot be itself constitute any development in a useful art …
patentability does not attach to any novelty or ingenuity which can be asserted for such a plan.”

Mere presentation of information can be considered as an orginal expression of an idea which

the ambit of protection of the copyright.

2
Marker/ Beattie, 1992 OJ EPO 379, the invention consisted of an apparatus for and a method of
learning how to play a keyboard instrument, with numbers corresponding to notes on a sheet
of music appearing on the keys too. The patent application was for a marker to be laid on a
musical keyboard to facilitate learning music. Patentability was ruled out. Since the key
marking were merely known technical features, the contribution made by the claimed
invention to the working of the teaching apparatus lay solely in the content of the information
displayed, not in the apparatus itself. The invention was not based on technical problem but on
an improvement to a teaching method which was equivalent to an improved method for
performing mental acts.

Section 3(o) of the Patent Act, 1970

 “topography of integrated circuits”.

Integrated circuits are protected by the Semiconductor Integrated Circuits Layout Design
Act,200 and is not patentable subject-matter.

Section 3 (p) of the Patent Act, 1970

“an invention which in effect, is traditional knowledge or which is an aggregation or duplication

of known properties of traditionally known component or components”.

“Traditional knowledge” (TK) is essentially culturally oriented or culturally based, and it is

integral to the cultural identity of the social group in which it operates and is preserved . the
definition of the TK used by the WIPO includes indigenous knowledge relating to categories
such as agriculture knowledge, medicinal knowledge, biodiversity-related knowledge, and
expression of folklore in the form of music, dance, songs, handicraft, design, stories and
artwork.

The development of new technology and the new use of the TK-based products today are the
major threat to the survival of many of these communities. The modern cultural industries as
well as the manufacturing industries now commercially exploit the TK-based products using
new technology without the permission and sharing of profits with the communities. It is
possible today to bring out new products or find out new use of existing products based on the
TK utilizing the technological developments in the field of biotechnology. This is proven beyond
doubt particularly in the field of medicine, agriculture, etc.

Dhanpat Seth v. Nil Kamal Plastic Crates Ltd., (2008) 36 PTC 123 (HP), the patent has been
granted in respect of a device used for manufacture of manually hauling the agriculture
produce. The defendant contested the suit and contended that the plaintiffs have fraudulently

3
obtained the patent and the patent has been wrongly granted in their favour. The defendant
further alleged that there is no novelty or invention in the patent and in fact it is just centuries
old device popularly known as “Kilta” which was originally made of bamboo and has now been
produced in plastic. The plaintiffs contended that the plastic kilta developed by the plaintiffs is
an invention and in the alternative, submitted that the development of the traditional kilta into
plastic one with adjustable nylon straps is an inventive step and amount to an invention. The
High Court held that the traditional kilta used in Himachal Pradesh is supported by adjustable
ropes going over shoulders. These have been in existence for the time immemorial. Therefore,
the mere fact that the device is made of polymeric material instead of bamboo is not an
inventive step involving novelty. There is nothing new about the process of manufacturing the
traditional kilta made of natural material from synthetic material. Even nylon straps added are
virtually copies of the ropes used in traditional Kilta. The device developed by plaintiffs is the
result of the TK and aggregation/ duplication of known products such as polymers therefore
cannot be said as invention.

Invention relating to atomic energy

Under section 4, Indian Patent Act, 1970 no patent shall be granted in respect of inventions
relating to atomic energy falling within section 20(1) of the Atomic Energy Act, 19662. This
section makes special provisions as to inventions that are useful or relate to atomic energy. The
Act requires that patents shall not be granted to such inventions. The Controller of patents has
to refer the application to the Central Government for direction as to whether the invention is
related to atomic energy. The decision of the Central Government shall be final.

Raytheon Co. v. Controller of Patent & Design, AIR 1974 Cal. 336, the Calcutta High Court
considered whether the decision of the Central Government is appealable under section 116 of
Indian Patent Act. The court came to the conclusion that a direction issued by the Central
Government cannot be appealed under the Indian Patent Act, 1970. The Court also found that
the question whether an opinion expressed under section 20(1) of Atomic Energy Act, 1962
was properly framed or not, also cannot be considered in an appeal under the Indian Patent
Act.

-------------