Are
greenhouse farming methods eligible for patent protection? would that be
eligible for patent protection if a technique or agricultural equipment is
developed by applying this greenhouse method? Similarly, would the Pythagorean
theorem be patentable if Pythagoras were alive today and the
discovery were made now?
Patent
protection under the Indian Patent Act requires an invention to meet specific
criteria, including novelty, inventive step, and industrial applicability.
However, the Act also stipulates certain exceptions, whereby specific types of
innovations are not eligible for patent protection.
The Inventions which are not patentable under
section 3 and 4
Section 3:
(a)
Frivolous Invention / Against Natural Laws
(b)
Against Public Order / Morality / Harmful to Life or Environment
(c) Mere
Discovery of a Scientific Principle / Natural Substance
(d) New
Form of a Known Substance Without Enhanced Efficacy
(e) Mere
Admixture Without Synergistic Effect
(f) Mere
Arrangement or Duplication of Known Devices
(h) Method
of Agriculture or Horticulture
(i)
Medical Treatment Methods for Humans / Animals
(j)
Plants, Animals, and Biological Processes
(k)
Mathematical / Business Methods & Computer Program Per Se
(l)
Literary, Artistic, or Aesthetic Creations
(m) Mental
Acts, Games, and Methods
(n)
Presentation of Information
(o)
Topography of Integrated Circuits
(p)
Traditional Knowledge / Duplication of Known Properties
Section 4:
(a) Inventions Related to Atomic Energy
(a) Frivolous
Invention / Against Natural Laws
Patent
protection is not available for inventions that fundamentally contradict
established scientific principles or natural laws. For instance, a time machine
would not be patentable, as time travel is scientifically impossible and defies
the laws of physics and Einstein’s Theory of Relativity. Hence the Section 3(a)
explicitly excludes pseudoscientific claims and establishes that an invention
must have scientific base.
(b) Against
Public Order / Morality / Harmful to Life or Environment
Inventions deemed unethical, dangerous or
harmful or those that disrupt the peace, safety, and well-being of the
community, are not patentable and to be rejected. Inventions that introduce
intoxicating drugs or promote harmful substances shall not be patented, as they
are contrary to the public interest. Biological Weapon with unethical
effect serves as another example under this provision.
(c) Mere
Discovery of a Scientific Principle / Natural Substance
To be patentable, an invention must have a
novel industrial application. Discoveries of scientific principles, natural
substances (living or non-living), or mathematical equations/formulas without
industrial application are not eligible for patent registration.
Hence the discoveries of any mathematical
equation or formula, scientific theories, any chemical compound or element from
earth or space, any microorganism, virus, bacteria or plant shall not be
patented. However, the genetically modified organisms with industrial
applications shall be patented.
In the case Dimminaco AG v. Controller
of Patents & Designs (2002), the issue was the patentability of
Bursitis vaccine which was manufactured by using a living organism. The Culcutta High Court held that there is no
statutory bar for patenting if a discovery is applied in a technical manner.
Hence a new process of vaccine preparation using living organisms is
patentable.
This section also excludes discoveries of
scientific facts such as water melts at zero degree Celsius or natural
biological process such as process of photosynthesis from the ambit of patent
registration.
(d) New Form
of a Known Substance Without Enhanced Efficacy
This section excludes patent registration for
new forms of existing substances or methods, such as new forms of existing
drugs without enhanced efficacy, new properties or uses of existing substances,
and existing manufacturing processes, unless they result in an entirely new
product.
For example, a beta-crystalline form of a
known drug without improved therapeutic efficacy is not patentable.
Additionally, minor modifications like different salts, esters, ethers,
polymorphs, metabolites, or isomers of a known drug without improved efficacy
are considered the same substance and are not eligible for
patent protection.
In the relevant case law Novartis AG v.
Union of India (2013), the Supreme Court set a precedent that for a new
form of a known drug to be patentable, it must demonstrate improved therapeutic efficacy. The Supreme Court upheld the rejection of the patent
application for the cancer drug Glivec (Imatinib Mesylate in beta crystalline
form). The court also clarified the meaning of “efficacy” under Section 3(d) as
“therapeutic efficacy” and not just improvements in properties.
(e) Mere
Admixture Without Synergistic Effect
This section prohibits the patenting of known
substances put together unless there is a synergistic effect. If the
combination of two components merely combined together the properties of the
two substances, then it does not rise to a patentable invention. However, such
combination of drugs or other components shall be patentable if it gives rise
to a product with a better therapeutic effect than the individual components.
In the case Ajanta Pharma Ltd. v.
Allergan Inc. (2013), the patent application for combination of two
drugs (Brimonidine + Timolol) for the treatment of Glaucoma was rejected by
Intellectual Property Appellate Board (IPAB).
(f) Mere
Arrangement or Duplication of Known Devices
This part rules out patenting for inventions
which simply combine existing elements without any functional improvement. When
those elements work independently of each other in a way that does not enhance
performance of either, the invention is not patentable.
In the case Bishwanath Prasad Radhey
Shyam Vs. Hindustan Metal Industries, the validity of patent related to
a means for holding utensils for turning purposes was challenged on the ground
of lack of novelty and inventive step. The court ruled that the patentability
of combination or improvement of existing devices should be depended upon the
satisfaction of the test of invention and inventive step and must produce a new
result or product. It must not be mere application, improvement or normal
development of existing device or product.
(h) Method of
Agriculture or Horticulture
This section prohibits the methods of
agricultural and horticultural practice from patentability. The reasoning
behind the exclusion of agricultural and horticultural methods is that they are
usually natural, traditional or based on biological principles. Such methods
should be free to use publicly rather than being patented and monopolized.
This section excludes methods such as Organic
Farming Methods, Hydroponics or Aeroponics, Seed Treatment Techniques, Grafting
and Hybridization Methods, Irrigation Techniques, etc from the ambit of
patentability. However, a new device, apparatus, or a unique composition of a
nutrient solution, as well as a new chemical composition related to such
agricultural or horticultural methods, shall be patentable, but not the method
itself.
(i) Medical Treatment Methods for Humans / Animals
This section excludes medical and surgical
methods (procedures) from the patentable subject matter. The reasoning for this
exclusion is that these types of methods must be available to physicians and to
provide the public access to medical services without any restrictions or
patents. However, compositions for pharmaceutical composition, medical devices,
and diagnostic kits may be patentable.
Hence Surgical Methods such as method of
performing a robotic-assisted knee replacement surgery, Diagnostic Methods such
as method of diagnosing neurological disorders using MRI scans, Therapeutic and
Curative Methods such as method of curing diabetes through gene therapy,
Veterinary & Animal Treatment Methods such as method of increasing milk
production in cows through hormonal injections are excluded from patentable
subject matters.
(j) Plants, Animals, and Biological Processes
This section excludes plants, animals, seeds,
varieties, species, and natural biological processes from patentability. The
only exception is microorganisms, which can be patented if they are genetically
modified or artificially engineered. The provision ensures that farmers’ rights
and biodiversity are protected, preventing the monopolization of life forms.
For example, Naturally occurring wheat, rice,
or any crop variety, Hybrid plants and seeds produced using natural
cross-breeding methods, new plant species developed using conventional breeding
techniques, A naturally occurring high-yield breed of cows, goats, or chickens,
A process of selective breeding for faster-growing poultry and A biological
process for increasing the yield are not patentable while A biochemical
composition used to enhance seed growth, A genetically modified microbe that
protects plants from pests, A genetically modified micro-organism that improves
livestock health and A new biotech method for enhancing milk production using
genetically engineered bacteria are patentable.
The supreme court held in the Monsanto
Technology LLC v. Nuziveedu Seeds Ltd. & Ors. (2018) that genetically
modified plants and seeds cannot be patented under section 3 (j).
(k) Mathematical
/ Business Methods & Computer Program Per Se
Under this section, mathematical methods,
business methods, and computer programs shall be rejected from patenting.
Hence, the discovery of a new theorem, formula, or any mathematical or
statistical method cannot be patented. This section also excludes business
methods such as a method for calculating interest rates for loans, a method for
managing financial transactions, and computer programs with no technical
effects.
In the case law, Yahoo v. Controller,
and Rediff, the IPAB reiterated that business methods are
not patentable. However, The Delhi High Court, in the case Ferid Allani
v. Union of India (2019) held that computer-related inventions can be
patented if such inventions provide “technical effect” or “technical
contribution”. Hence the software which is novel in terms of technicality,
shall be eligible for patent.
(l) Literary, Artistic, or Aesthetic Creations
This section in actual stands, separates the
patents from copyrights. Works related to artistic, literary, dramatic,
aesthetic, or music creations cannot be patented but can be protected under
copyrights act. Hence the Films, TV productions, method of writing books or
articles, musical composition, choreography of a dance program or painting
shall not be protected under the patent act 1970.
(m) Mental Acts, Games, and Methods
This section prevents the patenting of any
scheme, rule, method or idea of performing any mental act or method of a game
that does not involve any technical advancement or industrial applicability.
For example, a newly introduced exercise or
yoga method or a strategy for playing chess shall not be patented. However, the
techniques having industrial application such as a new sports equipment or a
device designed to improve or enhance memory, may be patented.
(n) Presentation
of Information
A mere presentation of facts lacks technical
advancement and industrial application. On other hand, it provides a way to
display or arrange the information. Hence, these are not patentable.
A new font style for text, a method for
gathering or publishing reports, or a way to arrange content in a book for
printing or on a webpage is not patentable.
(o) Topography
of Integrated Circuits
The topography or layout design of an
integrated circuit is protected under he Semiconductor Integrated Circuits
Layout-Design Act, 2000 (SICLD Act) not under the Patent Act 1970. A design or
layout of an integrated circuit is a functional aspect rather than an
invention.
(p) Traditional
Knowledge / Duplication of Known Properties
This section prohibits an invention from being
patented that is merely based on traditional knowledge without any novel and
substantial invention. This provision was added to prevent biopiracy and the
exploitation of indigenous knowledge and culture. For example, wound healing by
turmeric is traditionally followed; thus, an application for claiming the same
shall not be considered for a patent.
Section 4: Inventions Related to Atomic Energy
This
section prevents the patent registration of inventions relating to Atomic
Energy and radioactive substances, which are defined under Section 20 of the
Atomic Energy Act, 1962. It aims to ensure national security and public safety.
While interpreting this section with respect to Section 20 of the Atomic Energy
Act, 1962, it deals with special provisions regarding inventions related to
atomic energy, stating that no patents shall be granted for inventions deemed
useful for or related to the production, control, use, or disposal of atomic
energy, the handling of prescribed or radioactive substances, or ensuring
safety in atomic energy operations.
Further,
under the Atomic Energy Act, the prescribed substances that are not eligible to
be patented are defined in (Section 2(1)(g)). According to this, the prescribed
substances include Uranium, Thorium, Deuterium, Plutonium, Beryllium, their
derivatives and compounds, or materials containing these aforementioned
substances. Further, the Department of Atomic Energy (DAE) also determined the
prescribed substances and the prescribed limits of substances through its
notification.
The Bombay
High Court held in the case Ceres Intellectual Property Company Ltd. v.
Controller of Patents & Ors. that the IPO must have a reasoned
order while rejecting a patent under Section 4 and it must not be solely based
on a DAE directive without proper justification.
Author:
Busthanudeen Kodali
About the Author:
Busthanudeen
Kodali, a final-year law student at the Faculty of Law, Delhi University, and a
Patent Assistant Intern at Intellect Bastion.
Intellect
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