Before you invest your hard-earned resources into an invention it is important to ensure patenting in the intended jurisdiction. Even though patent law tends to be similar almost in all the countries, still, there are some differences which an applicant needs to consider. Not doing home works before investing resources into an invention could be deleterious as you may end up with nothing out of many things.
For example, the patent laws in the United States is more strict compared to its Indian counterpart and this is why pharmaceuticals companies are reluctant to come up with new molecules in India. Thus, it is important for companies to understand such differences as it could have a long-term impact on their overall business goals. Simply put, patent filing in India and patent filing in the United States needs different understanding and approaches so as to gain maximum benefits out of a patent.
Also Read: Business Method Patents: Allowed or Not
Below are a few things that are not patentable in India and an applicant should keep these points in mind while intending to file a patent in India.
Things that are not patentable in India
Frivolous ideas: An invention which is frivolous or which claims anything obviously contrary to well – established natural laws is not patentable in India. For example, patenting a perpetual motion machine or a machine that gives more than 100 % efficiency is not allowed in India
Ideas that can cause prejudice to human, animal or plant life or health or to the environment: As per section 3(b) of Indian patent law an invention can’t be granted patent if it is detrimental to the humanity, environment, or both. This clause reads “an invention the primary or intended use or commercial exploitation of which would be contrary to law or morality or which causes serious prejudice to human, animal or plant life or health or to the environment” is excluded. A few examples are:
- Biological warfare material or device
- Weapons of mass destruction
- Embryonic stem cells
- Terminator gene technology
However, genetically modified micro-organisms (GMOs) which do not fall under section 3 (b) are patentable.
A mere discovery of a scientific principle: According to Indian patent law 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. Some of the few examples are:
- Patenting Newton’s Laws
- Property of certain material that can withstand mechanical shock
- Superconducting Phenomenon as such
- Discovery of micro-organism
- Discovery of natural gas or a mineral
A mere discovery of a new form of a known substance: mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance is not patentable as per Indian Patent Act. For example, crystalline forms of known substances are not granted patent in India. However, applicants must consider that salts, esters, ethers, polymorphs, metabolite, pure forms, particle size, isomers, complexes, combinations and derivatives of a known substance with enhanced efficacy are patentable.
Methods of agriculture or horticulture: Methods of agriculture or horticulture like preparation of an improved soil, cultivation of algae and/or producing a new form of a known plant are not patentable as per Indian Patent Act. However, applicants need to care that agricultural equipment is patentable.
Mathematical methods/ business methods/ computer program/ algorithms: A mathematical or business method or a computer program or algorithms are not patentable as per Indian Patents Act. However, new calculating machine, a combination of hardware and software is patentable.
Aesthetic creations: As per Indian Patent Act literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic work and television productions are not patentable. These subject-matters fall under the Copyright Protection Act.
To sum it up we can say is that patent filing in India could be a daunting task for those who are not much familiar with the Indian Patent Acts but simply doing some homework we can make our work much easier. This article could help people understand things that are not patentable in India and thus can work accordingly.