Invention(s) not Patentable
As per Indian Patent Act, all inventions should fall under patentable criteria for patenting process.
The patentable criteria are “Novelty”, “Inventive step” and “Industrial Application”. Further in addition to possessing the above criteria, the invention should also not fall under Section 3 related to non patentable subject matter and Section 4 related to atomic energy.
Section 3 defines “What are not inventions” – this section clearly describes that if it is not an invention, then it will be a non-patentable concept & does not fulfil patenting criteria. Therefore, a patent application may not be filed if it comes under any subsection / categories in this section. There are 15 subsections starting from Section 3(a) – Section 3(p).
The following subsections are not inventions within the meaning of this Act, therefore not patentable under Indian Patent Act 1970. The examples are provided as mere illustrations and may not be concluded on the basis of these examples. There may be subjective decisions which may be taken depending on a particular case.
Section 3 (a) “An invention which is frivolous or which claims anything obviously contrary to well established natural laws”
3(a) reveals that any invention which seems frivolous which means lacking real purpose or importance or which becomes contrary to well-designed natural laws. For example:
- A machine appearing to give rise to persistent motion
- A machine claiming for giving the output without taking any input
- A machine claiming 100% efficiency
Section 3 (b) “An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment”
Few examples explaining section 3(b) may include the following:
- Any machine used for performing theft or burglary
- Any device or machinery apparatus which assist in counterfeiting of currency notes.
- Gambling device/machine/ apparatus related inventions
- Inventions related to any machine/apparatus or article, the use of which may cause serious prejudice to mankind, animals or animals
- Adulteration of food products or pesticides related inventions
- An invention related to cloning of humans
- Any invention related to device for house-breaking
Section 3(c) “The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature”
Discovery means “an action or process of discovering or being discovered” – this is discovery of something which was existing previously in nature & someone has simply found it. Few examples explaining section 3(c) may include the following:
- An invention claiming “discovery of scientific principle” is not considered to be an invention, hence non-patentable.
- An invention based on “scientific theory” is non-patentable as these theories may not considered to be inventions, it does not matter how insightful is the theory. However, any practical implication or application depicting such theory, which uses the abstract theory may be patentable.
- Acquiring a new substance or micro-organism which was occurring freely in nature is a discovery and can never be called as an invention.
Section 3 (d) “The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or 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. Explanation. -For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy”
Section 3(d) clarifies that salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substances may be considered as to be the same substance and can be patentable only if they differ significantly in properties with regard to efficacy. According to section 3 (d), following are not inventions and non-patentable:
- Mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance.
- Mere discovery of any new property of a known substance
- Mere discovery of new use for a known substance
- Mere discovery of use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Section 3 (e) “A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance”
An ad-mixture resulting in synergistic properties is not considered as mere admixture. Hence, substances like soap, detergent, lubricants, may be considered as patentable.
Section 3 (f) “The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way”
An invention claiming a mere re-assembly of known devices in which each device will act independently is not eligible for being patentable. For example,
- A flour mill made with sieving means
- A fan integrated with light and claiming an invention for providing air flow and light.
- An apparatus for giving rise to metallic bellows, the hydraulic machine and the roll forming machine claiming to act as separate machines functioning independently of each other
These above concepts are not patentable, since there is mere arrangement and rearrangement of the parts of assembly without having any working interrelationship between them and every part of assembly is working independently of each other.
Section (g)…(has been Omitted)
Section 3 (h) “A method of agriculture or horticulture”
Few of examples where the subject matter is excluded from patentability under this provision are:
- Plant manufacturing method , Green house effect (modification too)
- Improved soil generation method, the method is soil treatment from the soil with nematodes
- A method of generating mushrooms
- A method of algae cultivation
- Weeds removal methods
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”
Few examples explaining section 3(i) may include the following:
- Medicinal methods: Administering medicines process orally
- Surgical methods: Cataract operation
- Curative methods: Cleaning plaque process
- Prophylactic methods: Vaccination method
- Diagnostic methods: X-ray, Blood diagnostic process
- Any method of treatment of animal to render them free of disease or to increase their economic value or that of their products. For example, a sheep treatment method for increasing wool yield
- Cosmetic surgery/ methods
Section 3 (j) “Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals”
The following subject matters but not limited to are excluded under section 3(j):
- Plants as whole or in part of plants
- Animals as whole or any part of animal
- Plants and animals varieties/ species
- Biological process(es) for production or propagation of plants and animals.
However, Microorganisms, other than the ones discovered from the nature, may be patentable.
Section 3 (k) “A mathematical or business method or a computer programme per se or algorithms”
Under section 3(k), a mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable subject matter.
Section 3 (l) “A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions”
Following type of work comes under the domain of Copyright Act, 1957, hence not-patentable
- Literary works
- Computer programs
- Music/ Sound recordings
- Paintings, Drawings, Architecture, Photographic works etc.
Section 3 (m) “A mere scheme or rule or method of performing mental act or method of playing game”
Mere scheme or rule or method of performing mental acts or method of playing games, are not patentable because these simply comes from human mind. For example:
- Method for playing chess
- Teaching method.
- Any method for learning
Section 3 (n) “A presentation of information”
Presentation modes like presentation methods by using Audio Visual Aids are not considered to be invention, hence non-patentable. For example: railway time tables and 100 years of calendar etc.
Section 3 (o) “Topography of integrated circuits”
As there is another branch of Intellectual Property Rights i.e. Semiconductor IC Lay Out Design Act, 2000, therefore all inventions related to IC circuit designs are not patentable. The applicant is such matters should file IC circuit designs as per IC Design Act 2000. For example, 3D configuration of the IC circuits being used in microchips and semiconductor chips are not patentable.
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”
Traditional knowledge means knowledge which was already existing (in prior art). This knowledge was with public from a long/ ancient/ historical and passed from generation to generation. For example, Usage of Turmeric / Haldi as antiseptic i.e. for wound healing. Another example is Neem being used for pesticidal or insecticidal activities.
The Patent examiner may conduct investigation by using TKDL i.e. Traditional Knowledge Digital Library which is an excellent database for checking traditional knowledge and other similar resources/database which help applicant to take a decision about whether the claimed subject invention comes under Section 3(p) or not.
Thus, any invention/ inventive concept which comes under section 3(a) –Section 3(p) are non-patentable. Therefore, applicants/inventors should always verify whether the inventive concept is falling under the above-mentioned sections or not. Also, Indian patent agents should also make sure that the inventions for which patents are required to be filed do not fall into above sub-sections under Section 3.
However, as the patents are territorial and every country has it’s separate provisions regarding interpretation of sub-sections specially Section 3(i). For example, inventions related to “method of treatment” are allowable/patentable in US and Australia whereas “method of treatment” is not patentable in India, EP Japan, Korea etc.
ABOUT THE AUTHOR:
Dr. Amit Goel, Director and Jyoti Chauhan, Manager at Effectual Services.Views expressed in this article are solely of the author and do not reflect the views of either of any of the employees or employers.
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