Non-Patentable Inventions under the Patents Act, 1970

By Adv. Apurva Chodanker

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Introduction

We are well aware that under the Patent Act, the patent is an exclusive right given to the inventor for an invention (that may include kitchen appliances to everyday utility products) of innovative industrial use for a product or a process. The Indian patent act not only mentions the invention that can be patented but also mentions the invention that cannot be patented under the act. Though these inventions fulfill the essential requirement that is nonobvious, of industrial use, novelty, and usefulness still a patent cant be granted. Section 3 and section 4 of the patent act list out the invention that cannot be patented and they are termed as “inventions nonpatentable’. The question arises as to why such inventions are not granted patents. The answer to this question is that if the patent is granted to such an invention, then Firstly, there may be a monopoly in the market of such an invention that may affect the environment, and morality, which may cause danger to the national security and defense of India or disadvantageous to the health of human; Secondly, grant of a patent which is useful for the general people and the society at large, and for the development of science and technology.

EXCLUSION OF CERTAIN INVENTIONS FROM THE PURVIEW OF PATENTABILITY UNDER THE TRIPS AGREEMENT

Article 27(2) of the TRIPS Agreement gives voluntary power to members of different countries to exclude inventions from the scope of patentability on the grounds of public order and morality. Members may exclude patentability inventions based on the area for the protection of animals, plants, and human health or to avoid harm to the environment. It further states that such exclusion should not be forbidden by their law. Members are also allowed to exclude therapy methods, surgical methods, etc., and to exclude other plants, animals, and microorganism processes.

WHAT IS INVENTION?

Under the patent, act invention is defined in section 2(1)(j). it is a new product or a process that requires an inventive step and should have the qualities of industrial application.

NON- PATENTABLE INVENTION:

Section 3 of the Patent Act 1970 deals with what are not inventions.

(a)As per this clause any Invention that is superficial/false or inventions that claim opposite to the natural laws.

Example-

• Gravity wheel – a perpetual motion machine. This particular machine claimed to work continuously and it would only stop when stopped by human means. It was stationed in one place.
• Veet – it’s a hair removal cream that guarantees smooth and skilly skin. 

This advertisement is superficial because human skin may differ from person to person. it may be so for one person or individual it may show the result as mentioned in the advertisement and for some individuals it may be the complete opposite.

• Red Bull “red bull gives you wings”

This particular energy drink mentions after the drink is consumed it gives wings but it is not. It falsely attracts the consumer. There is also the famous case where the American man (Benjamin Carethers) felt he was being cheated and the company had to pay compensation of dollar 13 million.

• Mountain Dew “daar ke age jeet hai.“

In this advertisement, it is shown that after having this drink any person can perform or do a most dangerous act which is totally false. To perform such stunts or any act from a high altitude a lot of training and skill is required and considerable time is invested in practicing such stunts.

(b) This clause states any invention that is intended for initial purpose or profit-oriented use/advantage which would disturb the public order or morality and cause serious prejudice to human, animal, plant or health or the environment.

• Examples- 

• Device or machine or method used in breaking into house to commit theft or burglary
• Device or method in fake currency notes/money 
• Devices or innovative methods to win gambling 
• Bio war and bioterrorism
• Any invention that tries to disturb the well-settled rule or which is against and violates public peace, legal norms, social and cultural norms.

Example- Cloning

Electro-mechanical sexual stimulation devices are not granted a patent as they are used for commercial purposes and are against public order and morality.

(c)This clause states the finding of scientific principle is not patentable or the creation of abstract theory or discovery of any living or non-living body /structure taking place in nature. Also, any new plant variety or natural minerals found on the earth cannot be considered to be patented. 

Example– Natural pearls are one such example wherein in defense of one particular irritant, it secrets a fluid creating a layer upon the irritant thus resulting in a pearl.

Another example is mushrooms any new variety that is found or man-made in the laboratory cannot be patented.

(d)  As per this clause mere finding of a new form of material doesn’t result in the improvement of known productivity of that material or in that case of new property that is found or the machine or equipment is not patentable.

The explanation to clause (d) states that “for the purpose of this clause salt, esters, ether, polymorphs, metabolites, pure form, particle size, isomers, complexes, combinations and other derivatives of known substances shall be considered to be the same substance unless they differ significantly in properties with regard to efficacy”

Case law:  Novartis v/s Union of India

In this case, Novartis questioned the rejection of its patent application by IPAB for a kind of crystalline forming of Imatinib mesylate. The SC rejected the application on the ground that the said drug was not superior therapeutic as compared to the know substance. Merely making minute changes in the original drug does not amount to inventive steps.  The supreme court held that “a mere discovery of an existing drug would not amount to invention”

Ten Xc Wireless Inc & Anr v/s Mobi Antenna Technologies

The Delhi High Court held that method of replacing the conventional antenna to split- the sector was merely used for the asymmetric antenna and they were already known about the same.

(e) In this clause there is mention of substance acquired by mere blend which results in collection or bunch of properties of the component or the entire process which involves in the blending of such substances does not come under the purview of the invention and cannot be patented. 

Examples: soap, detergent, lubricant, etc. 

Sterile pharmaceutical composition:

the sterile pharmaceutical composition invented water-insoluble anticancer agent and pharmaceutically accepted carrier albumin (a protein made by the liver). M/s Natco Pharma Ltd., Hyderabad opposed his patent application. 

(f) The clause states that just arrangement or rearrangement or duplication of known devices each working independently of one. This clause deals with multipurpose devices. The conditions must be satisfied to constitute an invention and to grant a patent and that is the test of the invention or inventive step. There may be some improvement or modification that will make the old or the existing product to make it look like a totally new product.

Case law: Hind v/s Shree

The Gujrat high court held that, sec. 2(j) and 2(ja) read with section 3(f) just arrangement or rearrangement of know devices which are functioning independently of one another. 

Example: pen with a torch, umbrella with a fan, radio set with a charger 

(g) This clause is omitted by the Patents Amendment Act of 2002. 

(h) This clause talks about agriculture and horticulture, not about the invention, and cannot be patented.

Agricultural and horticulture activities are protected under the plant varieties and Farmers’ rights act, of 2001. India is following the sui generis system. Sui generis means “one of its own kind”.  sui generis means that it needs legislation that will combine cultural, spiritual, customary, and economic practices. Article 27.3(b) of the TRIPS Agreement states that the WTO Members should have IP protection for plant varieties by patent or effective sui generis or by any combination thereof. The World Intellectual Property Organization (WIPO) discusses that there should be a distinction between what can be commercialized and the holy or spiritual should not be part of the commercial scope. Indian legislation with regard to new plant varieties and farmers’ rights is in consonance and conformity with the International Union for the Protection of New Varieties of Plants (UPOV), 1978.

 Example- the Cultivation of Algae.

1. under this clause, the mentioned process is excluded from being patented i.e., medical, surgical, curative, prophylactic, diagnostic, or therapeutic. Medicinal includes administering medicines orally or through injections. The surgical process involves a stitch-free incision for cataract removal. A curative process or method means a method of cleaning plaque from teeth. Prophylactic involves the process of vaccination.  The diagnostic method is identifying or detecting the medical sickness or illness by examining the symptoms of a previous illness and doing the test. The therapeutic process is based on the term therapy which is related to therapy prevention as well as treatment, so this method cannot be patented.

Case law: Mayo Collaborative Services v/s Promethes Laboratories, Inc

US Court held that “diagnostic method patent is not patentable subject matter because it claims a law of nature”

Patent for grant of method for hybrid gastro- jejunostomy. the invention was for joining one piece of tissue to another piece of tissue. The patent was rejected on the ground that it was a surgical method and it merely joined the tissues.

(j) as per this clause (i)plants, (ii)animals (iii)seeds (iv)varieties and species of planta and animals (v) the fundamental biological process for production or breeding/ germination of animals /plants. Microorganisms that already exist in nature are not patented but newly found can be patented. 

The genetically modified microorganism may be patented as per the requirement of the patent act.

Example: 

-Cloning in animals,

-Where there is involvement of biological process cannot be patented. 

-Process for the production of recombinant proteins using carnivorous plants. The applicant applied for a grant of patent in this case, the claim was that for the carnivorous plants to be used as a medium for the production of the protein of interest. 

(k) This clause covers (i) mathematical methods (ii) business methods (iii) computer programmers and (iv) Algorithm methods that cannot be patented.

Mathematical methods: under this method problem solving is done using a skill with mental intellect. 

Business method: When we hear the word business, the first thing that comes to mind is the transaction of goods and services. The business method concept deals with the idea that a company has for a specific period of time. Detail disclosure and declaration of the method of carrying out bussing is followed including new types of e-commerce, taxes, etc.

The algorithm which involves a type of problem-solving methodology or mathematical formula cannot be patented.

• Example:

Chaos Theoretical Exponent Value Calculation – the inventor offered a system that could measure high speed and on a real-time basis calculating with Chaos Theoretical Exponent Value Calculation (CTEVC) from a time series signal which included noises.

(l)This clause talks about literal, dramatic music or artistic work including cinematographic work, television production is not an invention. We know that such literal or dramatic work comes under the purview of the Copyrights Act 1957.

• Examples- Writing, music, art, painting, sculptures, 

• Computer programs, electronic databases, 
• Books, pamphlets, lectures delivered in the classroom,
• Architecture, engravings, photographic work,
• Applies art, illustration, maps, sketches, and three-dimensional work which is used in geography.
• Topography, adaptations, arrangement of music, multimedia productions

(m) this clause states that any scheme, rules, or conducting mental act or method of playing games is not an invention. 

Example: 

-Method of learning.

-Particular way of learning.

-Method of solving crossword puzzle

(n) “a presentation of information is not an invention”.

As per the clause stated above any presentation via power-point or given to a class is not patentable. While giving a presentation there considerable effort that are put in to gather information on a particular topic and through study is done before presenting the paper to the class or gathering. The presentation includes virtual, audio, or using signs, words code, pie charts, diagrams, maps, etc. 

(o) “topography of integrated circuited is not an invention”

Integrated circuits Semiconductors which are used in microchips are not patented. 

Integrated circuits are granted separate protection under Semiconductor Integrated Circuit Lay Out Designs Act 2000.

(p)As per this clause when there is use of traditional knowledge in connection to invention or accumulation or duplication of known belonging of traditionally known component is not considered an invention. As we know that traditional knowledge is the knowledge that is passed on from one generation to another from our ancestors to us. Traditional knowledge includes home remedies, skills, or traditional religious or cultural practices that have helped generations to sustain and live their life.

Example: 

Turmeric case – the United States granted a patent on turmeric to the University of Mississippi medical center for wound healing properties. Exclusive rights were granted to sell and distribute. The Indian Council for Scientific and Industrial Research (CSIR) objected to this patent that was granted and submitted evidence and relevant documents, text in Sanskrit, and other languages regarding the use of turmeric to USPTO, they had to revoke the patent which was granted.

In India, turmeric is commonly used as an antiseptic agent for wounds, colds, and day-to-day cooking.

Neem case – A patent was granted to a company W.R. Grace in the United States and European Union. The patent was for an active component in the neem plant called azadirachtin, they had decided to use azadirachtin for pesticidal properties. The grant of neem patent was challenged by the New Delhi-based Research Foundation for Science, Technology, and Ecology (RFSTE) and the International Federation of Organic Agriculture Movement (IFOAM). The EPO revoked the patent on grounds of lack of novelty, and inventive steps.

If the use of traditional plants is done for developing an ointment that has the active ingredients of the pants or leaves then it is patented.

ATOMIC ENERGY 

Section 4 Patent Act states invention related to atomic energy is not patentable.

Under section 4 patent cannot be granted to any invention in relation to atomic energy that falls in section 20(1) of the Atomic Energy Act, 1962.

Conclusion

In my opinion, the inventions mentioned above are rightly excluded from being patented. India is still a developing country; it will take some time for that invention the acceptance because is against public order and morality. People should be educated because there is so much young and new inventory. India’s main occupation is agriculture, half of the country’s population is heavily dependent on agriculture and the IP legislation in India has rightly adopted the sui generis system by giving farmer rights and breeders rights. Examination of the patent application makes it easy for the patent office to reject the application if they fall within the ambit of sections 3 and 4 of the patent act (inventions that cannot be patented). It is also to note that mere admixture or slight modification will not be considered an invention. So, sections 3 and 4 act as a shield to the patent act.