According to the Indian Patent Act, all inventions must meet the requirements for patentability in order to be patented. "Novelty," "Inventive step," and "Industrial Application" are the requirements for patent eligibility. The invention should not come within Sections 3 regarding non-patentable subject matter and Section 4 regarding atomic energy in addition to meeting the aforementioned requirements. Section 3 states "What are not inventions"; it makes it very apparent that if something is not an invention, it is a non-patentable concept and does not meet the requirements for patentability. Hence, if a patent application falls under any of the subsections or groups in this section, it cannot be submitted. Starting with Section 3(a) to Section 3, there are 15 subsections (p).
Important legal provisions under Patent Act, 1970
The following sections are not inventions as defined by this Act and are not, therefore, eligible for patent protection under the Indian Patent Act of 1970. The instances are given merely as illustrations, and no conclusions should be drawn from them. Depending on a certain situation, subjective judgements could be made.
A frivolous innovation or one that makes claims that are manifestly at odds with well-known natural laws is defined in Section 3(a).
- Any creation that seems frivolous, which is defined as without actual purpose or importance, or that is in opposition to well-designed natural rules, is revealed by 3(a). For instance:
- A device that appears to provide constant motion
- A device that claims to produce the desired result without receiving any input
- A device boasting 100 percent efficiency
A primary or planned use of an invention that could be against public morality or order, or that could have substantial negative effects on human, animal, or plant life, health, or the environment, is defined in Section 3(b).
The following are a few examples of how section 3(b) may be explained:
- any tool used to commit theft or a break-in
- any tool or piece of machinery that helps in money note fraud.
- inventions relating to gambling apparatus, machines, and devices
- inventions relating to any device, tool, or product, the usage of which could seriously harm people, animals, or other living things
- Food product falsification or pesticide-related inventions
- a human cloning-related invention
- Any innovation pertaining to a tool for breaking into houses
Section 3(c) states, "The mere formulation of an abstract theory, the finding of any living entity or non-living object happening in nature, or the discovery of any scientific principle
Discovery is defined as "an action or process of discovering or being discovered"; in this case, something that already existed in nature has just been discovered. The following are a few examples of how section 3(c) may be explained:
An invention that makes the claim that it "discovers a scientific principle" is not regarded as an invention and is not therefore patented.
No matter how smart the "scientific hypothesis" may be, it cannot constitute the basis of an invention that is eligible for patent protection. Nonetheless, any use of the abstract theory that has a practical application or implication may be patented.
Section 3(d) states, "The mere use of any known process, machine, or apparatus, unless such use results in the production of a new product or employs at least one new reactant, or the mere discovery of any new property or new use for a known substance, which does not result in the enhancement of the known efficacy of that substance. Explanation: "Salts, esters, ethers, polymorphs, metabolites, pure forms, particle sizes, isomers, mixtures of isomers, complexes, combinations, and other derivatives of known substances shall be considered to be the same substance for the purposes of this clause, unless they differ substantially in properties with regard to efficacy."
According to Section 3(d), derivatives of known substances such as salts, esters, ethers, polymorphs, metabolites, pure forms, particle sizes, mixtures of isomers, complexes, combinations, and other derivatives may be considered to be the same substance and can only be patented if they differ noticeably from one another in terms of efficacy. The following are not inventions and therefore not patentable, per section 3(d):
- The known efficacy of a chemical is not increased by the simple discovery of a new form of that substance.
- only learning a single new characteristic of a known material
- simple finding of a fresh use for an existing chemical
- Simple discovery of a previously known method, tool, or device, unless such
A substance generated through a simple admixture that just aggregates the qualities of its components, or a method for making such a material, is described in Section 3(e).
A blend that exhibits synergistic qualities is not regarded as merely an amalgamation. Soap, detergent, and lubricants may be regarded as patented materials.
The phrase "simple arrangement, re-arrangement, or duplicate of known devices each operating independently of the other in a known manner" appears in Section 3(f).
An invention that only purports to be an independent re-assembly of previously existing parts is ineligible for patent protection. For instance,
- A flour mill with sifting is made of
- a fan with a light embedded into it that claims to be an invention for both air flow and light.
- An equipment for creating metallic bellows, with the hydraulic and roll forming machinery claiming to function as independent, separate machines.
These ideas are not patentable because they only involve the arrangement and rearranging of assembly elements; there is no functional interrelationship between them, and each part of the assembly functions independently of the others.
An invention that effectively duplicates or aggregates the known properties of a traditionally known component or components is defined in Section 3(p). Traditional knowledge is information that was previously available (in prior art). This wisdom has been passed down from generation to generation for a very long, ancient, and historical time. Use of turmeric or haldi as an antibacterial, or the healing of wounds, is one example. Another illustration is the usage of neem as an insecticide or pesticide.
The Traditional Knowledge Digital Library (TKDL), an excellent database for examining traditional knowledge and other comparable resources/databases that assist the applicant in determining whether the claimed subject invention falls under Section 3(p), may be used by the patent examiner to conduct investigation.
Therefore, any invention or creative idea that falls under Sections 3(a) through 3(p) is not patentable. Because of this, applicants and inventors should always confirm if their original ideas belong within the aforementioned categories or not. Additionally, Indian patent agents must ensure that the innovations for which patent applications must be submitted do not come under the aforementioned Section 3 sub-sections.
Novartis v. Union of India (2013)
By claiming it under the definition of "innovation" in Section 3 of the Patents Act, 1970, Novartis submitted an application to patent the medicine "Gleevec," one of its products. After a 7-year battle, the Supreme Court denied their application for the following reasons: First off, since the discovery of an already-existing medicine does not qualify as invention, no new drug was created. In addition to proving the conventional tests of novelty, inventive step, and application, the Supreme Court upheld the idea that under the Indian Patent Act, for the grant of pharmaceutical patents, there is a new test of enhanced therapeutic efficacy for claims that cover incremental changes to existing drugs, for which Novartis's drug did not qualify. Because the court looked past the legalities and into the fact that these firms were trying to "evergreen" their patents and make them unavailable for low prices, the decision became a landmark one.
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