INVENTIONS NOT PATENTABLE IN INDIA
A novel and non obvious innovation that has an industrial application is Patentable in India. The Indian Patent Act does not provide any definition of the term “patent”. Instead it has only provided for inventions which are not patentable as under Chapter III of the Act. Any invention regardless of satisfying the Novelty, Utility and Non obviousness test, if falls within any criteria under Section 3 and 4, is not patentable. Section 3 specifically mentions sixteen exclusions which cannot be Patented in India.
A frivolous invention or the one contrary to established natural laws is not patentable. A perpetual motion machine or a machine that gives more than 100% performance cannot be patented according to this clause. An invention whose commercial exploitation is contrary to public order and morality or which causes serious prejudice to human, animal, plant or the environment is not patentable. Thus, a device for house breaking or a gambling machine cannot be granted a patent. An application which helps one hacking into email accounts of others can also not be patented. A terminator gene technology cannot be patented as it poses a serious threat to the animal and plant life as well as to the environment. Only genetically modified micro-organisms which do not fall under section 3 (b) are patentable.
The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature is not patentable. This means the discovery of an existing phenomenon like a natural gas, or an element cannot be patented. It is for the simple reason that the discovery of the phenomenon or the theory is not an invention i.e. neither a new process nor a new product but a mere finding. Similarly, the mere discovery of any new form of a known substance which does not result in the enhancement of the known efficacy of that substance or 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 process results in a new product or employs at least one new reactant cannot be patented. The crystalline forms of known substance cannot be filed for a patent grant under this exclusion. New uses of the plant neem cannot be patented as per this clause. However, salts, esters, ethers, polymorphs, metabolite, pure forms, particle size, isomers, complexes, combinations and derivatives of a known substance with enhanced efficacy are patentable. Clause (e) excludes substances obtained by mere admixture resulting only in the aggregation of the properties of the components is not patentable nor is the process by which such substance is obtained. However, Synergistic formulations are patentable. It means an admixture where one drug increases the other's effectiveness will be considered an innovation to be patented under the Act. A novel synergistic herbal formulation for diabetes cure comprising extracts from selected Indian medicinal herbs was granted the patent number 239060 in 2010.
Mere arrangement or re-arrangement or duplication of known devices, each functioning independently of one another in a known way is exclusion under clause (f). Thus, a torch attached to a bucket or a clock and a radio in a single closed cabinet cannot be patented as they work independently of each other. But, if such an arrangement results in a different use of the combined product then it is patentable.
A method of agriculture or horticulture, for example a new type of soil, or a new method of cultivating wheat cannot be patented. But this clause does not exclude filing for a patent of a new, better working agricultural equipment.
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 for example process of carrying out a surgery or blood transfusion is not patentable. It is important to note that processes in this case are not considered inventions. However, systems and apparatuses are still considered as patentable subject matter. Plants and animals as a whole or parts thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals is another exclusion under clause (j). Examples of it includes Clones of animals 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, essentially biological process etc.
A mathematical method or business method or algorithms or computer programme per se is not patentable under clause (k). This exclusion about computer programmes per se has raised variety of questions about software patentability in India in the growing technological and digital world. Therefore, a computer program code in itself can be given protection under the Copyrights Act as a “literary work” but is not patentable. However a new calculating machine or combination of hardware and software is patentable.
A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions comes under the Copyrights Act protection and therefore is left out of the purview of Patents Act. A mere scheme or rule or method of performing mental act or method of playing game example method of learning a language, or solving a crossword puzzle etc is excluded from Patent Law application. However, novel apparatus for playing game or carrying out a scheme is patentable. Presentation of information in any manner or method by spoken words, visual display, diagrams or symbols are not be covered under the Patent Act.Topography of integrated circuits is also not patentable. They can only seek protection under Semiconductor Integrated Circuit Lay-out Designs Act. Inventions which are of traditional knowledge or an aggregation or duplication of known properties of traditionally known component or components are not patentable. However, any value-addition using traditional knowledge leading to a new process or product, which is novel with inventive step and industrial applicability, can be patented, for example the extraction of a natural insecticide Azadirachtin from Neem.
Section 4 excludes inventions relating to atomic energy falling within Section 20(1) of the Atomic Energy Act, 1962. It says that no patents shall be granted for inventions which in the opinion of the Central Government are useful for or relate to the production, control, use or disposal of atomic energy or the prospecting, mining, extraction, production, physical and chemical treatment, fabrication, enrichment, canning or use of any prescribed substance or radioactive substance or the ensuring of safety in atomic energy operations. This exclusion clearly makes it evident that public interest if of prime importance to our patent law makers. This exclusion ensures that any invention out of atomic energy, if patented, can result in disastrous effect for the public at large.
The failure of the parliament to define the term “patent” and specifically providing for inventions which are not patentable has been largely criticized. Section 3 of the act has been in question for various ambiguities, especially in the cases of computer program patentability and pharmaceutical industries. The IP authorities in India did realize the growing need to define computer programmes per se and its patentability and published its “Guidelines for Examination of Computer Related Inventions” in the year 2013 on its website. The law makers must address this lacuna in the act to avoid further confusions and contradictions.
