This article has been written by Ms. Aditi Mishra, a 4^th Year B.Com. LLB (Hons.) student from Institute of Law, Nirma University.

Patent

A Patent is the granting of a property right by a sovereign authority to the inventor of an invention of a product or a process that provides a new and a different way of doing something or offers a new and advanced technical solution to an existing problem. A Patent empowers the inventor and gives them the right to stop others from making, using or selling their invention, without their consent or permission.

Types Of Patents

There are mainly three types of patents:-

1. Utility Patents
2. Design Patents
3. Plant Patents

Pre-requisites For Patentability Of Inventions

As per Section 2 (1) (j) of The Indian Patent Act, 1970, the term ‘innovation’ is defined as ~ “a new product or process involving an inventive step and capable of industrial application.” Thus, the three essentials to be fulfilled for an invention to be patentable are:

1. NOVELTY

The invention must be novel or new, i.e., it must not already be in existence in any part of the world.

2. NON-OBVIOUSNESS / INVENTIVE STEP

The invention must be non-obvious, i.e., even a person skilled in the art is not able to come up with that invention without exerting or acquiring exceptional mental skills and ability.

3. UTILITY / INDUSTRIAL APPLICATION

The invention must be beneficial to mankind, have a bonafide purpose and have an industrial application. Any useless or any illegal innovation is not eligible to be patented.

Non-Patentable Inventions

Sections 3 and 4 of The Indian Patent Act, 1970 provide for the exclusions which are not patentable in India. Section 3 of the Act gives a list of what is not considered as an invention under this Act, and thus is not patentable as it does not fall under the ambit of inventions.

SECTION 4 specifically talks about the inventions relating to atomic energy being non-patentable. It clearly states that such inventions which fall withing Section 20 (1) of the Atomic Energy Act, 1962 will not be patentable.

SECTION 3 (Inventions NOT Patentable)

1. Frivolous or Contrary to Natural Laws

All the inventions which are frivolous in nature or are contrary to the well-established natural laws are non-patentable.

Example: a machine giving output without an input.

2. Against Public Order / Morality

All the inventions of which the primary or intended use or commercial exploitation is against public order or morality, i.e., it is against the accepted norms or customs of the society, or if it can cause serious prejudice or deterioration to human, plant and animal life or affect the environment, are not patentable.

Example: an invention leading to bioterrorism, or theft and burglary, counterfeiting, etc.

3. Mere Discovery of Something Already Existent in Nature

All the inventions involving a mere discovery of a scientific principle or the formulation of an abstract theory, or the discovery of any living or non-living substance already existing in the nature, are not patentable.

Example: a discovery of a micro-organism.

Case Law: Bilski vs. Kappos

4. Discovery of a New Form of a Substance Not Leading to Increased Efficacy

All the inventions involving a mere discovery of a new form of a known substance which does not lead to any enhancement in the already existing efficacy, or the mere discovery of any new property or any new use of a known substance or of the mere use of a known process, machine, or apparatus, unless such known process results in anew product, or employs at least one new reactant, are not patentable.

As per the explanation clause of this provision, the following are to be considered to be the same substance unless they differ significantly in properties with regards to efficacy – salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, combinations and other derivatives of known substances.

Case Law: Novartis vs. Union of India; Glochem Industries Ltd. vs. Cadila Healthcare Ltd.

5. Mere Admixtures Resulting in Aggregation of Properties

All the inventions involving the obtainment of a substance by mere admixing of two or more mixtures resulting only in the aggregation of properties of the components thereof, or a process for producing such substances, are not patentable.

Example: soap, detergent, lubricant, etc.

6. Mere Arrangement / Re-arrangement / Duplication of Known Devices

All the inventions involving re-arrangement or duplication of known independent devices functioning in a known way, are not patentable.

8. Method of Agriculture or Horticulture

All the inventions involving a method of agriculture or horticulture, are not patentable.

Example: a method of improving the soil.

9. Medicinal Process for Treatment of Diseases in Humans and Animals

All the inventions involving a process for treatment (medicinal, surgical, curative, prophylactic, diagnostic, therapeutic, etc.) of human beings and animals, are not patentable.

Case Law: Mayo Collaborative Services vs. Prometheus Laboratories Inc.

10. Biological Processes for Production and Propagation of Plants and Animals

All the inventions involving the biological production or propagation of plants and animals, in whole or any part, including seeds, varieties and species for doing so, but excluding micro-organisms, are not patentable.

11. Mathematical or Business or Computer Programs

All the inventions involving a mathematical or business method or a computer program per se, or any algorithms, are not patentable.

Example: a mathematical calculation, a scientific truth, etc.

12. Literary, Dramatic, Musical or Artistic Work

All the inventions involving a literary, dramatic, musical, or artistic work, or any other aesthetic creation, including cinematographic works and television productions, are not patentable.

Example: such activities as mentioned above fall under the ambit of The Copyright Act, 1957.

13.  Mental Act, Rule or Method

All the inventions involving a mere scheme or a rule or a method of performing a mental act or a method of playing any game, are not patentable.

Example: playing chess, or sudoku, etc.

14. Presentation of Information

All the inventions involving a mere presentation of information in the form of tables, charts, graphs, diagrams, etc., are not considered inventions, and thus are not patentable.

15. Topography of Integrated Circuits

All the inventions involving topography of integrated circuits, such as semi-conductors used in microchips, are not patentable.

16. Traditional Knowledge

All the inventions, which in effect are traditional knowledge per se, or a combination or duplication of known properties of the traditionally known components, are not patentable.

Example: antiseptic properties of turmeric.

Conclusion

India is a nation that has recognized the value of a robust patent system for the development of industry and commerce and for bringing it up to par with the rest of the contemporary world. The number of patent filings has increased since the Indian Patent Act was enacted. This act’s Sections 3 and 4 have been used as a filter to determine what is considered to be an invention, helping the authorities to determine as to where to grant a patent. Thus, Patents are only granted for novel and beneficial innovations.

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