PATENTS,

PATENTABLE AND NON-PATENTABLE

INVENTIONS
 PATENTS
The government grants a Patent for an invention being novel, non-obvious and useful in
industrial application. It lasts for a period of 20 years and after the expiry of the period, the
invention enters the public domain. It is a territorial right however one can apply for convention
application. No third party can make, distribute or sell the registered invention.
Patent Registration in India plays an important role in protection from exploitation of new ideas
and invention. However, there is a restriction on patents or what can be or cannot be patented.
It is an exclusive right approved by the government to the inventor of a product for his invention
for a limited time period. This right excludes others from making, processing, producing, using,
selling, and importing the product or process, without his consent.

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 IMPORTANT POINTS ABOUT PATENT
 A patent has territorial limitation i.e. it provides protection of right in the particular country where
the patent has been filed or register. So, the patent in India will not protect the creator to exercise
his rights outside India. There is no protection of the patent worldwide.
If an inventor intends to obtain the worldwide right to a patent over his product or process, then
the separate application needs to be filed in different countries within 12 months from the date of
filing in India. Hence, separate patent required from each country to protect his invention from
duplication.
Application for Patent can be filed either by the first inventor or his assignee, either alone or jointly
with any other person.
A patent application should be filed before publically disclosing the invention. If it is disclosed
before filing for Patent, the basic objective of the patent will be destroyed and all will be in vain.
In India, a patent for a product is granted for 20 years from the date of filing a
patent application.
In India out of 962 patents application published in 2019, 71 applications were early
publication and 891 were ordinary publication but only 309 applications have been granted,
rest were rejected
According to the Patent Act (of India), 1970, those that fall under the category of “Inventions”
can be patented, as defined in Section 2 (j) of the Act which involves anything that is novel,
capable of industrial application, and is not frivolous (subject-matters eligible for patentability).
However, those that cannot satisfy such conditions (or restricts the scope of subject matters
eligible for patentability) are non-patentable as mentioned in Section 3 and Section 4 of the Act
What Are Inventions?
As defined in Section 2 (j) the term “invention means a new product or process involving an
inventive step and capable of application”. The invention should be of absolute novelty as
neither it has been used nor published in any part of the world

Section 3 And 4 Of The Indian Patent Act

Section 3 and Section 4 of the Patent Act is highly debatable and deals with the list of
exclusions that are non-patentable that do not satisfy the above conditions.
 PATENTABLE INVENTIONS
Patents are granted to those inventions which satisfy certain conditions called as criteria of
patentability. According to the Indian Patent Act, a patentable invention is defined as “a new
product or process involving an inventive step and capable of industrial application”. Therefore,
following are the basic requirements for any invention to be patentable
a) Newness: To be patentable the subject matter of the invention must not be known before the date
of patent filing. An invention is considered new if it is not published in any document or not used in
the country or elsewhere in the world
b) Inventive Step: It is defined as the featusre of an invention that involve technical advancement
as compared to existing knowledge or having economic significance or both, that makes the
invention not obvious to a person skilled in the art
c) Industrial Applicability: The invention must be capable of being made or used in an industry. For
example, a new and inventive method of removing tumor cells from patient’s body is industrially not
applicable, thus can not be patented.
 NON- PATENTABLE INVENTIONS
NON-PATENTABLE INVENTIONS IN INDIA
SECTION-3 (A) Inventions which are frivolous or contrary to well established natural laws.
Example– Inventions that are against the natural laws that are any machine giving 100%
efficiency, or any machine giving output without an input cannot be considered as obvious
and cannot be patented.
SECTION-3 (B) • An invention, the primary or intended use of which would be contrary to
law or morality or injurious to public health. (Punishable by law or causes danger to
animals or humans)
Example: • Gambling Machine, Device for house breaking, or the Onco-mouse, genetically
modified to develop cancer for the purposes of medical research is not patentable because
cancer can be transmitted to public.
SECTION-3 (C)
The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of
any living thing or discovery of non–living substance occurring in nature
Example: • Newton’s Laws. • Discovery of micro-organism or Archimedes principle.
In Bilski V. Kappos,
This case deals with the Patentability of a business method. In this case, Bilski and Warsaw applied for the
patent on hedging risks on commodities trading but their patent got rejected by the US Supreme Court on
grounds that an abstract idea cannot be patented.
SECTION-3 (D) • The 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 known process results in a new product
or employs at least one new reactant
Example: • New use of Aspirin for heart ailments. • Mere new uses of Neem, mixture of isomers, complexes
SECTION-3 (E)
Mere admixing of mixtures leading in the aggregation of properties of the components thereof or a
process for producing such substance is not an invention.
Example: • Combiflam[Paracetamol (Antipyretic) + Brufen (analgesic)]. • Solution of sugar and color
additives in water to form a soft drink.
 SECTION-3 (F) The mere arrangement or rearrangement or duplication of known devices, each
functioning independently of one another in a known way.
Example: • A Bucket fitted with torch. • An Umbrella with fan. • A Clock and radio in a single
cabinet.
SECTION-3 (H)
A method of agriculture or horticulture.
Cultivation of algae , • Producing new form of a known plant, • Preparation of an improved soil.
But Agricultural Equipments are patentable.
SECTION-3 (I)
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
Example: • Removal of cancer tumor. • Removal of dental plaque and carries. • Surgical processes
In Mayo Collaborative Services V. Prometheus Laboratories, Inc
In this case, the US Supreme Court said that “diagnostic and therapeutic methods (which includes the
treatment or cure of diseases) is not patentable as it claims a law of nature”
SECTION-3 (J)
Plants and animals in whole or any part thereof other than microorganisms but including seeds,
varieties and species and essentially biological processes for production or propagation of plants
and animals
Example: • Clones and new varieties of plants. • A process for production of plants or animals. • if
it consists entirely of natural phenomena such as crossing or selection i.e, Essentially biological
Process
SECTION-3 (K)
A mathematical or business method or a computer program per se or algorithms
Example: • Computer program by itself or as a record on a carrier, But combination of hardware
and software is patentable. • Online chatting method.
SECTION (L)
A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including
cinematographic works and television productions.
Example: These subject matters fall under the copyright protection.
SECTION-3 (M)
A mere scheme or rule or method of performing mental act or method of playing game.
Example: • Method for solving a crossword puzzle, • Method of learning a language
SECTION 3 (N)
• A presentation of information. Example: • spoken words • symbols • diagrams
SECTION-3 (O)
Topography of integrated circuits
Example: Mask works circuits layout
SECTION 3 (P) An invention which in effect, is traditional knowledge or which is an aggregation
or duplication of known properties of traditionally known component or components
Example: Turmeric.
SECTION-4 Inventions relating to atomic energy not patentable. Example: • Inventions relating to
compounds of Uranium, Beryllium, Thorium, Plutonium, Radium, Graphite, Lithium are not
patentable.
THE PATENT AMENDMENT ACT 2005
A computer program per se is not patentable but its “ technical application to
industry or a combination with hardware” is patentable. The scope of computer
program has been widened and is more or less on lines with US Patent grants.
The provision of prohibiting product patent for food, medicines, drug and chemical
processes has been removed.
THANK YOU