Introduction
Sections 3 and 4 of the Indian Patents Act, 1970 specifically state exclusions to what can be patented in India. Our previous blog post has comprehensively explained what cannot be patented in India. That brings us to the question; what can be patented in India?
At the outset, it has to be mentioned that the answer to this is not set in stone. There isn’t any definitive list as to what can be patented. There are, however, certain criteria that are required to be met in order to make an invention patentable. The patentability of an invention is determined by its ability to meet the criteria.
Even before delving into the criteria, it is important to understand the invention’s meaning and patented meaning. According to Section 2(j) of the Indian Patents Act, 1970 an invention means “a new product or process involving an inventive step and capable of industrial application.”, such invention protected under the patent law refers to patented.
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.
Invention under The Patents Act
The Patents Act, 1970 defines an invention as a new product or a process that has an inventive step and has some industrial applicability. For an invention to qualify to get a patent, it has to fulfill certain conditions which are as follows:
- It must be new or novel;
- It must have industrial applicability;
- It must involve some inventive step;
- It shall not fall under the ambit of Sections 3 and 4 of the Act.
If the above-mentioned conditions are fulfilled then the said invention can be patented under the Act.
Section 3 and 4 of the Act deals with inventions that cannot be patented. The following are not patentable under the act:
- Inventions that are frivolous and contrary to the natural laws;
- Inventions that go against public morality;
- Inventions that are a mere discovery of something that already exists in nature;
- The mere discovery of a form already existing in nature does not lead to enhancement of efficacy;
- Mere admixing of mixtures leading to the aggregation of properties are non-patentable;
- Mere aggregation or duplication of devices working in a known way is not an invention;
- Horticulture or agricultural method is non-patentable;
- Medicinal, curative, prophylactic, diagnostic, therapeutic for treating diseases in humans and animals are non-patentable;
- Essential biological processes for the production or propagation of animals and plants is not an invention;
- Simple mathematical or the business or the computer programs are not an invention;
- Aesthetic creation is not an invention;
- Mental act, rule, or method is not an invention;
- Presentation of information is non-patentable;
- The topography of integrated circuits is non-patentable;
- Traditional knowledge is not an invention;
- Atomic-energy inventions are non -patentable.
The following are not the “inventions” under the meaning of this act:
(a) Inventions that are frivolous and contrary to natural laws.
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.
b) Inventions which go against public morality
Inventions in which the primary or intended use or commercial exploitation of which could be contrary to public order or morality (that is against the accepted norms of the society and is punishable as a crime) or which causes serious prejudice to human, animal or plant life or health or to the environment.
Example– As in Biotechnology, termination of the germination of a seed by inserting a gene sequence that could lead to the disappearance of butterflies, any invention leading to theft or burglary, counterfeiting of currency notes, or bioterrorism.
(c) Inventions that are a mere discovery of something that already exists in nature.
The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living or non-living substances occurring in nature.
Explanation– Mere discovery of something that is already existing freely in nature is a discovery and not an invention and hence cannot be patented unless it is used in the process of manufacturing an article or substance. For instance, the mere discovery of a micro-organism is not patentable.
Invention criteria under Patent Act
1) Invention must be New
Novelty is a fundamental requirement and an undisputed condition of patentability. An invention will not be novel if it has been disclosed in the public through any type of publication anywhere in the world. For example, a lot of hue and cry has been raised in India when the patent was granted to turmeric products in United States on the ground that it is not new and it is already published in Indian Texts and use of Turmeric preparations has been made in India since times immemorial. Further .the Newness of an invention depends upon the state of existing knowledge as well as the similar inventions in that particular field.
Prior use of invention before filing an application for patent can also destroy novelty. Oral description of the invention in some seminar/conference can spoil novelty if the patent application is not filed within a stipulated time period, which is six months in India.
2) Useful
An invention even though it is new as well as non obvious to a person skilled in the art to which it relates cannot be granted a patent unless and until it is of some use to the Mankind .Therefore, a useless invention though may be new and non obvious will not be granted the status of a patent
3) Non Obvious to the person skilled in the art to which the invention relates to:
The Invention by any person in any field of art shall be of such a nature that a person, who is also skilled in the art to which this invention relates, shall not be able to come to that invention unless he is acquiring some special mental skills.
Discovery vs. Invention
The following are the major differences between a discovery and an invention:
- Prior existence: Discoveries are something which already existed but we did not have the knowledge about the same till it was recognized, whereas inventions, on the other hand, are the things, etc which never existed before but only the parts or the things which were used in creating such an invention, existed before.
- Occurrence: The occurrence of discoveries is natural; however, inventions are human-made occurrences of things or objects.
- Involves: Discoveries involve exploration whereas inventions involve experimentation.
- Originality: Although both discovery and invention are considered to be ‘new’, since discovery is related to the findings of something which already existed in nature, discovery is not original. However, the invention is related to the creation of something new by using prior existing things, therefore, an invention is original.
- Patentability: A discovery is not patentable, whereas, an invention is patentable.
Difference between Invention and Innovation
| BASIS FOR COMPARISON | INVENTION | INNOVATION |
|---|---|---|
| Meaning | Invention refers to the occurrence of an idea for a product or process that has never been made before. | Innovation implies the implementation of idea for product or process for the very first time. |
| What is it? | Creation of a new product. | Adding value to something already existing. |
| Concept | An original idea and its working in theory. | Practical implementation of new idea. |
| Skills required | Scientific skills | Set of marketing, technical and strategic skills. |
| Occurs when | New idea strikes a scientist. | A need is felt for a product or improvement in existing product. |
| Concerned with | Single product or process. | Combination of various products and process. |
| Activities | Limited to R & D department. | Spread across the organization. |
Conclusion
India is a country that has understood the importance of strong patent systems for the growth of industry and commerce to bring it at par with the modern world. With the promulgation of the Indian patent act, there is an increase in the number of patent filing. Section 3 and 4 of this act (consisting of inventions that cannot be patented) has been a filter that decides what falls in the ambit of inventions. Only inventions that are new and useful are patented. Innovators and inventors are highly intrigued in protecting their intellectual property.
Reference
https://www.legalserviceindia.com/article/l300-Patentability-Criteria.html
https://www.wipo.int/patents/en/
https://www.indiaip.com/india/patent/faq
https://www.government.nl/topics/intellectual-property/question-and-answer/what-are-the-criteria-for-patenting-my-invention
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