This article has been written by Mr. Arjun Singh Tamang, a 2nd year student of Faculty of Law, University of Delhi.
Indian Patent Act 1970 is the enactment which authorizes the registration of Patents in India. Section 3 and 4 of Chapter II deals with inventions and innovations which are not patentable.
What is Invention?
Sec 2(j) defines “invention” means a new product or process involving an inventive step and capable of industrial application;
Inventions are basically doing old things in New and easy way which ameliorate people’s life.
Patent is an intellectual property which gives exclusive rights to the person who invented a new product or process which is basically a new way of doing the old thing or presents an innovative and technical solution to a currently existing problem. In famous judgment of Novartis Ag v. Union of India case, Supreme Court held that the beta crystalline form of Imatinib Mesylate is only a modification of the currently existing substance Imatinib Mesylate and therefore it cannot be patented as per sec 3(d) of the Act.
Patent rights protect the inventors so that other individuals or entity cannot copy the Inventions and use it under their name.
Validity period of Patent in India – A patent is only good for 20 years from the day it was first filed. However, for applications submitted in accordance with the Patent Cooperative Treaty, the 20-year period begins on the date of international filing (PCT).
Sec 3- What are not inventions.—the following are not inventions within the meaning of this
Act,—
1. Frivolous or Misleading Inventions
An Invention whose nature is that it is claiming to perform a task which is fatuous or obviously impossible by established nature of Law. Such inventions are not patentable.
For example – Inventions like machine claiming to bring dead person back, teleportation machine or invention alleges to produce 100% efficiency.
2. Contrary to Public order
Inventions whose primary goal or commercial exploitation would result in breaking of equilibrium of societal public order or morality or which would be harmful for biotic and abiotic components of ecosystem.
For example – A gambling machine or application that helps in hacking phone and invading privacy cannot be patented.
Machine or device which facilities counterfeiting of currency notes.
3. Mere discovery of a scientific principle or abstract theory
It is not possible to patent the simple discovery of a scientific concept, the formulation of an abstract theory, or the discovery of any living being or non-living substance that occurs in nature. A simple assertion of the discovery of a scientific principle is not regarded as an invention, but the application of that concept to a method for producing a good or service could be.
Also, a scientific proposition is a statement about the natural world. These propositions themselves aren’t considered to be inventions, no matter how radical or revolutionary a sapience they may give, since they don’t affect in a product or process. Still, if the proposition leads to practical operation in the process of manufacture of a composition or substance, it may be patentable.
4. Mere discovery of New form of known substances – The bare discovery of a new form of a known substance which doesn’t affect in the improvement of the known efficacy of that substance or the bare discovery of any new property or new use for a known substance or of the bare use of a given process, machine or outfit unless using identical process results in a new innovative product. In F.Hoffmann: La Roche Ltd v/s Cipla Ltd Case law the final judgment was in the favor of plaintiff and held that defendant using similar model of drug is violation of patent right. However the patent of polymorphs B was denied by Patent office as it didn’t fulfill the criteria of section 3(d).
For Example – The classic example of same substances are like salts, esters, ethers, poly morphs, metabolites, pure forms, particle sizes, isomers, mixtures of isomers, complexes, combinations, and other derivatives of known substances, unless their differences in efficacy are appreciably greater.
The crystalline form of known substances cannot be patented. In Chugai Seiyaku Kabushiki Kaisha versus Controller of Patents and Design case, the Delhi High Court held that producing a solid form drug of pre-existing medicine using compression method is not Inventions as it lacks innovation as per sec 3(d) of statute.
5. Inventions made by mere admixture
There are Inventions which are produced after doing barely admixture of substance and which doesn’t produce anything new or innovative. Mere admixture which only aggregates the properties of base substance is not considered to be patentable.
But inventions like soap, detergents etc. are not considered mere admixture and can be patented.
6. Method of agriculture and horticulture
A novel sort of soil or brand-new methods of growing wheat are examples of methods in agriculture or horticulture that cannot be trademarked. However, this provision does not preclude the filing of a patent for new, improved agricultural equipment.
7. Treatment method of human beings and animals – Any process for the medicinal, surgical, restorative, precautionary, individual, remedial or other treatment of mortal beings or any process for an analogous treatment of creatures to render them free of complaint or to increase their profitable value or that of their products isn’t a patentable invention. Still, patent perhaps attained for surgical, remedial or individual instrument or outfit. Also the manufactures of prostheses or artificial branches are patentable.
8. Plants and animals wholly or partly and also including seeds, varieties and species and essentially biological processes like cross-breeding plants and different varieties of plants and animals but it excludes microorganisms.
9. A method or way of doing business for example any specific technique of carrying on business cannot be patented. Similarly a mathematical formula or a computer coded program that is algorithms are not considered as inventions and hence not patentable in India.
However computer implemented inventions can be patented if they are new, innovative and never but produced before and solves a technical problem.
10. Any kind of literature piece, dramatic work, musical notes or lyrics or any other artistic creation whatsoever which also includes television productions and cinematographic works are not considered inventions and therefore not patentable.
11. A mere scheme or rule of method or way of applying mental skills which includes way of playing games cannot be patented.
For example a specific move in chess to win game, playing Sudoku or applying any skills while playing E-sports cannot be patented.
12. A presentation of information – Any sort of information and the way to present such information cannot be patented. For example presentation of railway timetable, calendar or weather forecast etc.
13. Topography of integrated circuits is not inventions and therefore cannot be patented.
14. Mere aggregation of traditional knowledge – An Invention which is nothing but a mere aggregation of traditional knowledge or replication of already known properties of such traditional components is not Inventions and hence cannot be patented.
Section 4 of Indian Patent Act states that any inventions relating to atomic energy are not patentable. Subsection 1 of section 20 of Indian atomic Energy Act, 1962 describes all the criteria and if any inventions fall within this scope such inventions cannot be patented.
Conclusion
A fast pace developing country like India has already acknowledged the importance of robust patent systems for the development of nation’s industry and commerce so that it can come to the level of the other’s nation. The number of patent filings has increased since the Indian Patent Act was enacted. Indian Patent Act 1970’s Sections 3 and 4, which list inventions that cannot be patent, have used as a filter to determine what is considered an invention. Patents are only granted for novel, beneficial innovations.
References
Aishwarya Says:
Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com
Join our Whatsapp Group for latest Job Opening