India: Non Patentable Inventions

Last Updated: 1 September 2016
Article by Chadha & Chadha IP

Non patentable inventions are given in Section 3 of the Indian Patent Act:

Section 3 (a): Frivolous inventions

Section 3 (b): Inventions which are contrary to Law or Mortality or injurious to public health

Section 3 (c): Mere discovery of a scientific principle or formulation of an abstract theory.

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 is not an invention.

Section 3(d) provides an explanatory clause to make it more clear which reads as follows:

(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)

The complete specification must clearly and categorically bring out in the description, as to how the subject matter differs significantly in properties with regard to efficacy from the known substance. .

In a recent landmark decision (Novartis AG Vs. Union of India, W.P. No. 24760/06), the Madras High Court held that efficacy means therapeutic efficacy. It was held that going by the meaning for the word efficacy and therapeutic what the patent applicant is expected to show is, how effective the new discovery made would be in healing a disease or having a good effect on the body. In other words, as the Court further clarified, the patent applicant is definitely aware as to what is the therapeutic effect of the drug for which he had already got a patent and what is the difference between the therapeutic effect of the patented drug and the drug in respect of which patent is asked for.

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 is not an invention.

A mere aggregation of features must be distinguished from a combination invention. The existence of a combination invention requires that the relationship between the features or groups of features be one of functional reciprocity or that they show a combinative effect beyond the sum of their individual effects. The features should be functionally linked together which is the actual characteristic of a combination invention.

An admixture resulting in synergistic properties is not considered as mere admixture, e.g., a soap, detergent, lubricant and polymer composition etc, and hence may be considered to be patentable.

Section 3 (f): Mere arrangement or re-arrangement of known devices

The Manual of Patent Practice & Procedure says that in order to be patentable, an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement; and must independently satisfy the test of invention or an inventive step. To be patentable, the improvement or the combination must produce a new result, or a new article or a better or cheaper article than before.

Section 3 (h): Method of agriculture or horticulture

Section 3 (i): Any process for the medicinal, surgical, curative, prophylactic diagnostic therapeutic or othertreatment of human being 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 is not patentable

a) Medicinal methods: As for example a process of administering medicines orally, or through injectables, or topically or through a dermal patch.

(b) Surgical methods: As for example a stitch-free incision for cataract removal.

(c) Curative methods: As for example a method of cleaning plaque from teeth.

(d) Prophylactic methods: As for example a method of vaccination.

(e) Diagnostic methods: Diagnosis is the identification of the nature of a medical illness, usually by investigating its history and symptoms and by applying tests.

Therapeutic methods: The term ―therapy includes prevention as well as treatment or cure of disease. Therefore, the process relating to therapy may be considered as a method of treatment and as such not patentable.

Further examples of subject matters excluded under this provision are: any operation on the body, which requires the skill and knowledge of a surgeon and includes treatments such as cosmetic treatment, the termination of pregnancy,castration, sterilization, artificial insemination, embryo transplants, treatments for experimental and research purposes and the removal of organs, skin or bone marrow from a living donor, any therapy or diagnosis practiced on the human or animal body and further includes methods of abortion, induction of labour, control of estrus or menstrual regulation.

Application of substances to the body for purely cosmetic purposes is not therapy.

Patent may however be obtained for surgical, therapeutic or diagnostic instrument or apparatus. Also the manufacture of prostheses or artificial limbs and taking measurements thereof on the human body are patentable.

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 are not inventions.

The subject matters excluded under this provision are:

(a) plants in whole or in part

(b) animals in whole or in part

(c) seeds

(d) varieties and species of plants and animals

(e) essentially biological process(es) for production or propagation of plants and animals.

Microorganisms, other than the ones discovered from the nature, may be patentable. For instance, genetically modified microorganisms may be patentable subject to other requirements of Patentability.

Plant varieties are provided protection inIndiaunder the provisions of the Protection of Plant Varieties and FarmersRights Act, 2002.

Section 3 (k): A mathematical or business method or a computer programme per se or algorithms are not inventions and hence not patentable.

Software per se not patentable. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components.

Computer Implemented Inventions can be patented if:

They have technical character and solve a technical problem.

They are new.

They involve an inventive technical contribution to the prior art.

The method claims should clearly define the steps involved in carrying out the invention. It should have a technical character.

The claims should incorporate the details regarding the mode of the implementation of the invention via. hardware or software, for better clarity.

The claim orienting towards a process/method should contain a hardware or machine limitation.

Business Methods claimed in any form are not patentable subject matter. The term Business Methods involves whole gamut of activities in a commercial or industrial enterprise relating to transaction of goods or services. With the development of technology, business activities have grown tremendously through e-commerce and related B2B and B2C business transactions. The claims are at times drafted not directly as business methods but apparently with some technical features such as internet, networks, satellites, telecommunications etc. This exclusion applies to all business methods and, therefore, if in substance the claims relate to business methods, even with the help of technology, they are not considered to be a patentable subject matter.

Algorithms in all forms including but not limited to, a set of rules or procedures or any sequence of steps or any method expressed by way of a finite list of defined instructions, whether for solving a problem or otherwise, and whether employing a logical, arithmetical or computational method, recursive or otherwise, are excluded from patentability.

Patent applications, with computer programme as a subject matter, are first examined with respect to (b), (c) and (d) above. If the subject matter of an application does not fall under these categories, then, the subject matter is examined with a view to decide whether it is a computer programme per se.

If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention.

If the subject matter of a patent application is not found excluded under the foregoing provisions, it shall be examined with respect to other criteria of patentability.

Section 3 (l): A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions is not patentable.

Section 3 (m): A mere scheme or rule or method of performing mental act or method of playing game is not patentable.

Section 3 (n): A presentation of information is not patentable.

Section 3 (o) Topography of integrated circuits is 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 is not patentable.

Traditional Knowledge Digital Library (TKDL)

Traditional Knowledge Digital Library or TKDL as it is known came into being by collaborative efforts of Council of Scientific and Industrial Research (CSIR), Ministry of Science and Technology and Department of AYUSH, Ministry of Health and Family Welfare.

The project TKDL involves documentation of the traditional knowledge available in public domain in the form of existing literature related to Ayurveda, Unani, Siddha and Yoga, in digitized format in five international languages which are English, German, French, Japanese and Spanish.

At present the access to TKDL database has been given to European Patent office, USPTO and the German Patent Office. Over the past one year, the EPO has rejected 15 patent applications based on the relevant findings on TKDL.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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