This article is written by Mithravindha.R, BA.LL.B(Hons.),II year, SOEL,TNDALU during her internship at LeDroit India.
KEYWORDS:
Patent, Right, Invention, Non-Patentable, Criteria
ABSTRACT:
Patent is a special right one has over a new invention (product or process) or discovery. Usually when one gains patent over a invention or a new process it will become his own invention or process and hence he can also prevent others from making or using it. It is very helpful as it encourages inventions. However in Some countries there is also some limiting period for patentability after which one cannot claim the patent and the invention can be utilised by public. And also Not all invention can get Patent, there are some criteria for getting patent for your invention and there are some inventions for which patentability cannot be granted, Such inventions are called non-patentable inventions. In this article we will see about Non patentable Inventions .
INTRODUCTION:
The Indian Patent’s act came to force on 20 April, 1970 alongwith patent rules of 1972. The main aim of the act is to encourage innovators to come up with new inventions and make them useful for the public.It contains 23 chapters and 163 sections. It had its last amendment on 2005. There are 139 patent rules divided into 16 chapters. Section 2(j) of the act defines invention which means a new product or process that involves inventive step and capable of industrial application. However all inventions are not patentable , chapter II of the act deals with Inventions not patentable . It contains sections 3, 4 and 5. Section 5 of the act was omitted by Patents (Amendment) Act, 2005. (1)
CRITERIA FOR PATENTABILITY:
NOVELTY:
The invention or publication for which the patent is claimed must be new, it should not have been published elsewhere or used in our country or anyother country before the date of filing for patent application.
INVENTIVE STEP:
Inventive step plays an important role for claiming the patent of a invention. Only when one or more inventive steps is new and different from the exisiting knowledge and not obvious to any person skilled in the art that invention become novel. Section 2(ja) of the Act defines Inventive Step.
INDUSTRIAL APPLICATION:
An invention made should be of commercial importance that it can be utilised or manufactured in a Industry, only then it can be granted with patent. Section 2(ac) of the act defines Industrial application. (2)
DIFFERENCE BETWEEN PATENTABLE AND NON PATENTABLE INVENTIONS:
| S.NO | PATENTABLE INVENTIONS | NON PATENTABLE INVENTIONS |
| 1 | Any inventions which satisfy the definition of invention under section 2 of Patent’s Act and that do not fall under the subject matter of section 3 and 4 are patentable inventions. | All those inventions which comes under the subject matter of Section 3 and 4 are non patentable |
| 2 | These inventions are novel, have one or more inventive steps and has industrial application | These inventions may not satisfy the criteria for patentability |
| 3 | Patentee get exclusive rights for a certain period and he can prevent others from using that invention for that particular period | One cannot prevent others from using or utilising his invention |
| 4 | The competitors should think of other alternative as they cannot infringe the rights of patentee by utilising the invention | There is no bar for the competitors in using the same invention or inventive steps. |
| 5 | Eg: New display for phone, New pesticide | Eg: medical surgical curative or inventions relating atomic energy |
SECTION 3 OF PATENT’S ACT:
Section 3 talks about what all are not inventions which do not come under the ambit of definition of invention under Section 2 of Patents Act. The following are listed below:
a)Invention contrary to the natural laws:
Anything which is impractical or impossible and against the natural law is not a invention
Eg: A machine which has more than 100% efficiency or teleporting device
b)Invention contrary to public order or morality:
Any invention whose primary or intended use is against a public order or morality or causing injury to human, animal or environment and those inventions that supplement to a crime are not inventions.
Eg: Device for theft, gambling, burglary or robbery
c)Mere discovery of a scientific theory or natural thing:
Mere discovery of a scientific principle or theory without applying it for manufacturing anything is not an invention. Similarly mere discovery of anything that already exist in nature is not an invention.
Eg: New plant, animal or mineral discovered, Newton cannot claim patent for E=Mc2
d)Mere discovery of a new form of already existing substance:
Unless there is efficient use of already existing substance due to new discovery or there is new product as a result of new discovery of already existing process, it cannot be an invention.
Eg: salt , esters, ethers are considered same substance unless their efficacy varies
e)Substance obtained out of mere admixture
A substance which is a mixture i.e. it is obtained due to aggregation of properties cannot be an invention
Eg: Soap, detergent
f)Duplication of Known device:
Arrangement or rearrangement or duplication of already existing devices are not patentable. There should be new idea or new formation.
Eg: umbrella with fan or cap with torch
g) method for testing the manufacture (omitted by 2005 Amendment Act)
h)Method for agriculture or horticulture
Any method for improving the agricultural produce or horticulture is not an invention
Eg: New plant produce, new method for producing mushroom
i)Any medicinal, curative, surgical, diagnostic, therapeutic or prophylactic process:
Any such processes which are discovered to treat human beings or animals to keep them free from disease or to increase their economic value cannot be an invention.
Eg: Injections, oral medicines, vaccination
j) plants or animals or micro organisms
Any plants or animals discovered in parts or as whole, any new microorganisms or seeds or varieties of species or any biological process for their production and propagation discovered cannot be a invention
Eg: Genetically Modified Micro organisms
k) mathematical, business methods or computer programs
Any theorems, formulas, algorithms or methods of mathematics and business are not inventions however anything created by applying those concepts can get patent. Similarly any new computer programs are not inventions
Eg: (A+B)2
l) literary, dramatic, musical or artistic works
Any literary, dramatic, musical, artistic works including cinematographic or television works cannot be inventions
Eg: writings, novels, serials
m) Rule of performing a mental act or method of playing a game
Eg: method of playing chess or method of teaching or Method of playing cricket
n) Presentation of information
Any method of expressing information though visual media or written media or through sign or gestures cannot be a invention
Eg: seminar
o)Topography of integrated topography:
Eg: semiconductor chips
P) Traditional knowledge or aggregation of traditionally known components
Discovery out of already known skills of a culture or spiritual sphere is not an invention
Eg: Turmeric used in treating wounds
SECTION 4 OF THE PATENTS ACT :
According to this section any inventions relating to the atomic energy is not patentable and those inventions are referred from 20(1) of The Atomic Energy Act 1962 (3)
CASE LAWS:
Split Sector Antennae was used to substitute the conventional antennae . As all are forms of asymmetrical antennae they are not invention as stated under section 3(d) (4)
Court held that the idea for easing the risk in commodities trading is not an invention as stated under 3(c) (5)
3. Novartis Ag V. Union Of India
Court held that mere discovery of already existing form of drug cannot be an invention (6)
4. Mayo collaborative Services v. Prometheus Laboratories Ltd.
US Supreme Court held diagnostic method is non patentable. (7)
