Patentable inventions: Part I

Any invention falling within the scope of section 3 of the Patents Act, 1970 is not considered to be a patentable invention. Section 3, particularly section 3 (d), always attracted great debate among the patent professionals/attorneys. Being a statutory provision, section 3 is always open for judicial interpretation but in absence of case laws clear explanation is still lacking. Unlike US computer software, business method, and method of treatment are not patentable in India. Till date, section 3 has been amended twice to broaden the limiting scope and to ensure that only well merit inventions see the light of patent protection. Let us go through section 3 and scrutinize what is in and what is out. Frivolous or Against Public Policy Section 3(a) states, an invention which is frivolous or which claims anything obviously contrary to well established natural laws is not patentable. In patent law, any invention to be patentable must have industrial utility and must be capable of industrial application. For example, in 2005 UK Patent Office rejected a patent application titled “Energy lasting increasing endlessly (ELIE)” considering that the disclosed invention was related to a perpetual machine and was thus not capable of industrial application. Examiner argued that disclosed invention alleged to operate in a manner which was clearly contrary to well-established physical laws and thus not patentable. Section 3 (b) further states, an invention the primary or intended use of commercial exploitation of which could be contrary public order or morality or which claims serious prejudice to human, animal or plant life or health or to the environment is not patentable. For example, a surgical device for performing abortion may be consider as non-patentable in India on ground on public morality. This provision may differ country to country because what is consider immoral in India, may not be considered immoral in US, for example, gambling devices. Inventions intended to perform fraudulent activities are considered to be non-patentable, for example, burglary. Method of Agriculture or horticulture Section 3 (h) states, a method of agriculture or horticulture is not patentable. Unlike in US, inventions related to cultivation of plants are not patentable in India. For example, a method of produce a new form of a known plant which involves modifying the conditions under which natural phenomena would purse their inevitable course is not patentable. Indian Patent Application claiming a method of producing mushroom plant (445/Del/93) and a method of cultivation of an algae (264/Del/79) was rejected by the Patent Office considering that the production of mushrooms and cultivation of an algae is analogues to agriculture because they belong to plant kingdom and therefore fall within the scope of section 3 (h). Inventions such as ploughing or sowing equipments, machines used for cultivation, and devices for storing agricultural or horticultural products are patentable. However, cultivation of micro-organisms and silk rearing do not fall within the scope of section 3 (h).