4 What inventions are Patentable and Not patentable ?

What inventions are Patentable in India

Inventions that are patentable in India include new products or processes with an inventive step and industrial application. They must not fall under non-patentable categories outlined in sections 3 and 4 of the Patent Act. Not patentable are frivolous or contrary to natural laws, immoral or harmful inventions, discoveries of scientific principles, and more. Inventions related to atomic energy are also excluded from patentability.

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An invention relating either to a product or process that is new, involving an inventive step and capable of industrial application can be patented.

Provided the invention is not falling under the categories of inventions that are non- patentable under section 3 and 4 of the Patent Act. (for details see the section on inventions not patentable )

video about : What inventions are Patentable

Here is how an invention is defined in the patent act 1970:

Section 2(1)(j) “invention” means a new product or process involving an inventive step and capable of industrial application;

Section 2(1)(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

Section 2(1)(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art;

Patentable subject matter in India

Invention must

  • relates to a process or a product or both
  • be new (Novel)
  • involves an inventive step
  • be capable of industrial application
  • not fall under Section 3 and 4

Patentability requirements of an invention

  • Newness or novelty
  • Inventive step or non-obviousness requirement
  • Capable of Industrial application
  • Enabling

What we can learn from it:

If your innovative idea is a product or a process that has novelty, has an inventive step, and is capable of the industrial application then the invention said to be a patentable invention.

Now let’s look at each patentability criteria one by one so that we can see if our innovative idea satisfies them and whether we should proceed with the patent application.

Newness or novelty requirement

Sections 2(1)(l) and 2(1)(j) of the Patents Act highlight the difference between a new invention and an invention.  A ‘new invention’ is defined as:

any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art.

An invention is said to be novel if all elements of a claim of the invention are not anticipated by a single prior art that is published, or used or known to the public.

Refer our section on “working with patent agent or attorney” on patent drafting for understanding importance of claim and the role they play in patent.

Inventive step or non-obviousness

Now let’s talk about the inventive step, also known as the non-obviousness test for your innovative idea.

An inventive step is said to be present in your invention when it has a technical advance as compared to the existing knowledge (that is state of the art of your field of the invention) or it has economic significance or you invention has both such that it makes your invention non-obvious to a person skilled in the art.

So, we need to identify a feature of our invention that is either technically advance or it is economically significant or both, when it is compared to state of the art or existing knowledge such that our invention becomes non-obvious to a person skilled in the art.

Technical advance means some feature of the invention is having advancement which is technical in nature as compared to the existing knowledge.

A person skilled in the art is a person who has average skills from your domain. For example, if your invention is related to a mechanical device, the person skilled in the art would be from a mechanical background. If there are multiple technologies used in the invention then a person skilled in the art is assumed to have all the knowledge (that is available and known to the public) from the technologies involved. This is to assess the inventiveness of the invention.

The idea here is our invention should not be obvious to a person skilled in the art (that is an average person from a background of the field of the invention).

In other words, considering the state of the art (things are already known to the public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as the non-obviousness test.

Few approches to achieve Inventive step

few approches to achieve Inventive step are:

  • Inventions is solveting a long-standing technical problem which is tried to be solved by prior arts but could not.
  • If invention is showing unexpected technical effect of a new combination of known elements
  • The digree of difficulty to a person to combine known prior arts to arrive at solution, etc..
  • The “problem/solution” approach is usually used for evaluating inventive step, wherein the solution presented by the patent application is checked if it is obvious to a person skilled in the art.

And one of the ways to qualify for the non-obviousness test of patentability is mentioning and proving to the examiner that our invention is solving a long-standing problem in the industry. Pointing out that the problem existed for a long time and there was a need to solve the problem, also mentioning existing prior arts and patent references who tried before but could not solve up to a certain extent   (stating problems with the prior arts in the background of the invention while drafting patent) and since the problem has not solved till now it ultimately means the solution to the problem that is our invention was Not obvious.

Now, this is not your job as an inventor to do all this, in fact, this is the responsibility of a patent agent or patent attorney working on your invention.  an experienced patent professional would be asking you for the required details and technicality of your invention and using such information while drafting patent application for your invention which gives a very good chance for your patent application to stand through the examination stage till the grant of patent.

This is explained in detail in the section “preparing patent application (patent drafting)”

Industrial application or utility

Section2(1)(ac) capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

Industrial application means invention is capable of being made or used in any kind of industry. This is also known as usefulness, a patented invention should be able to be produced on a large scale that is it could be created, used and repeated.

Now if you observe the word in the definition is Capable of industrial application, which means it need not be mass-produced right now, but has the capability of industrial application in the future.  In general, this patentability requirement of usefulness or industrial application is not much of a problem to prove.

Who can apply for a patent in India?

An application for a Patent for an invention may be made by any of the following persons either alone or jointly with any other person:

  • The true and first inventor
  • True and first inventor‘s assignee
  • The legal representative of the deceased true and first inventor or his/her assignee

What inventions are Not Patentable in India?

What is not Patentable? 

  • Inventions falling within the scope of Sec. (3) of Patents Act, 1970.
  • Inventions falling within the scope of Sec. (1) of Sub-sec. 20 of Atomic Energy Act, 1962

The following are not inventions as per Section 3 of the patent act

(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;

(b) 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;

(c)    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;

(d) 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.

(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;

(f)  the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;

(g)..(omitted)

(h)  a method of agriculture or horticulture;

(i) 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.

(j) plants and animals in whole or any part thereof other than micro­ organisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals;

(k)   a mathematical or business method or a computer program per se or algorithms;

(l)   a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing the game;

(n)   a presentation of information;

(o)   the topography of integrated circuits;

(p)   an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components.

And as per Section 4 of the patent act Inventions relating to atomic energy not patentable.

Prasad Karhad
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