WHAT CAN BE PATENTED IN INDIA? INTELLECTUAL PROPERTY LAWS IN INDIA

One of the most important types of IPR, a patent, protects innovation by granting property rights to any form of an invention, including new products and innovative processes. It gives the inventor the right to prohibit others from using, manufacturing, importing or selling the innovation without permission. Also, a patent gives the patentee the authority to allow a third party to use the invention and generate royalties.

The Patents Act, 1970 and the Patent Rules, 2003 regulate India's registration and protection of patents. Here, it is pertinent to note that the Patents Act of 1970 was further amended by the Patents (Amendment) Act, 2005 to extend product patent to all fields of technology, including food, drugs, chemicals and microorganisms, and to repeal the provisions relating to Exclusive Marketing Rights (EMRs).

The 2005 Amendment also introduced a provision regarding compulsory licenses. The Patent Rules, 2003, was also recently amended by the Patent Rules, 2016. The Patents Act object is to encourage new technology, scientific research, and industrial progress in the country.

Before understanding the patentability potential of an invention, it is necessary to know the following dynamics of the patent system in India to get a clear understanding of what can be patented and what cannot be patented:

1. Meaning of a Patent

According to Section 2 (m) of the Patents Act, 1970, a 'patent' means a patent for any invention granted under this Act. Here, it is imperative to look at the definition of an invention given under Section 2 (j) of the Act, which states that an 'invention' is a new product or process involving an inventive step and is capable of industrial application. 

Thus, a patent can be explained as a statutory right for an invention granted to the government's patentee for a limited period. As the Government grants a patent, it makes the ideal property of the innovator. Thus, the patentee has the right to exclude others from making, using, selling, and importing the patented product or process for producing that product without his consent. In India, a patent is granted for 20 years but must be renewed by the patentee every year by paying the renewal fee. It must be noted that one cannot obtain an international patent as patents are territorial rights. Hence, a patent right granted in India is effective only within the territory of India. In simple words, if one seeks patent protection in a foreign country, the inventor must apply for a patent grant as per the intellectual property laws in that particular country.

2. Persons entitled to apply for patents

According to Section 6 of the Patents Act, 1970, an application for a patent grant can be filed, either alone or jointly with any other person, by either the true and first inventor or his assignee. In India, the legal representative of a deceased person can also apply for a grant of patent.

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3. Criteria of patentability

Usually, a question arises in the minds of creators about what can be patented and whether their invention is eligible or not? In India, an invention is patentable if related to a product or a new process, involving an inventive step and capable of industrial application. Such an invention must not fall into the category of inventions that are non-patentable under Section 3 and Section 4 of the Patents Act, 1970. In simple words, an invention is patentable if it meets the following criteria:

a) It should be novel

b) It should be non-obvious, and it should be an inventive step

c) It should be capable of industrial application.

d) It must not attract the provisions of Section 3 and Section 4 of the Patents Act, 1970.

Now, it is clear that an invention's patentability is determined by its ability to meet this set criterion. Although the answer to the question 'what can be patented?' cannot be answered because there is no definitive list as to what can be patented, the Patents Act, 1970 specifies what cannot be patented. According to Chapter II, Section 3 and 4 of the 1970 Act, the following inventions are outside the scope of being patented:

1) Frivolous or contrary to natural laws – 

An idea that is frivolous or contradicts the well-established natural laws cannot be called an invention. For example, a machine that alleges to give output without any input is frivolous and contrary to natural laws.

2) Contrary to public order, morality and injurious to public health –

An example of such an invention can be any device or machine for committing theft. This device cannot be patented because the act of burglary goes against public order. However, it must be noted that if the purpose of the invention does not cause any harm to the public, such an invention can be patented.

3) Mere discovery of a scientific principle or the formulation of an abstract theory –

A claim for the discovery of scientific principle or the discovery of any living or non-living substance occurring in nature is not considered an invention.

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4) Discovery of a new form of a known substance –

The applicant must show that the discovery has enhanced the known efficacy of an already existing substance. The very discovery of a new form of a known substance that does not enhance the known efficacy of that substance will not be treated as an invention.

5) Re-arrangement or duplication of known devices –

To be patented, an improved substance must produce a new result. This new, formed device or substance can be patented. However, the mere arrangement, re-arrangement or duplication of known devices cannot be patented.

6) Mathematical methods, business methods, computer programs or algorithms –

Mathematical methods, business methods, computer programs and algorithms are not considered patentable subject matter.

7) Topography of integrated circuits –

The topography of integrated circuits cannot be patented in India because the Designs Act, 2000 govern the layout designs of integrated circuits.

8) A method of horticulture or agriculture –

Any process relating to agriculture and horticulture cannot be patented according to Section 2 (h) of the Patents Act, 1970.

9) Inventions relating to atomic energy –

In India, grants are not given for patents relating to atomic energy. The Central Government has specified that uranium, beryllium, thorium, radium, graphite, lithium, etc., are not patentable.

Conclusively, it can be understood that patentable inventions have not been defined. However, Section 3 and 4 of the Patents Act of 1970 state what cannot be patented in India.

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Author: Jinal Vyas