Patenting a novel invention, product, design or process is crucial to provide the legal framework for protection of an inventor’s right over a product. Patenting established the ownership of innovation upon the inventor. It also provides the patent owner the exclusive right to use, make and sell his product. Therefore, the importance of patenting a product cannot be overemphasized.
First, one must find out whether an invention deserves legal protection—in short, whether a product, process, or design is patentable. In India, the (Indian) Patent Act, 1970, answers this question. As per Section 3 of the Patent Act, the following are not patentable:
- An invention which is frivolous or which claims anything obviously contrary to well-established natural laws;
- An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;
- 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;
- 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.
- This means that 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;
- A substance obtained by a mere ad-mixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
- The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
- A method of agriculture or horticulture;
- Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings 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.
- Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
- A mathematical or business method or a computer programme per se or algorithms;
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
- A mere scheme or rule or method of performing mental act or method of playing game;
- A presentation of information;
- Topography of integrated circuits;
- An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
In addition, under Section 4 of the Patent Act, no patent shall be granted to an invention relating to atomic energy falling under sub-section (1) of the Section 20 of the Atomic Energy Act, 1962.
In the light of the above, it may be summarised that for a thing to become a patent eligible subject matter, it must have presence of novelty, inventive step or nonobviousness, utility and industrial applicability.