Patents in India

Patent grants statutory monopolistic rights to Patentee in with respect of an invention. Patent rights encourage research and development by providing exclusive rights to patentees to commercially make use of the inventions as well as restrain others from using the same without permission of the Patentee. Patent rights act as economic incentives to patentee in lieu of disclosure of invention to public so that the same could be used for further scientific and technological research and development. Patents being statutory rights are enforceable only within the territorial jurisdiction of the country/state where they have been granted. It is possible to claim priority from an application filed in a country/ state and file Conventional or PCT Application on basis of said application.

For the purpose of the Patents, invention means a “new product or process” involving an “inventive step” and “capable of industrial application”. The invention must be novel. The "Inventive step must involve some technical advance as compared to the existing knowledge or have economic significance or both and hence making the invention not obvious to the person skilled in the art. Capable of industrial application means that the invention must be capable of being made or used in an Industry.

Not all inventions are Patentable. For an invention to be patentable, it must be new, useful and non-obvious and must pass through certain parameters prescribed by Patent Act for Patent rights in India. Section 3 of the Indian Patent Act provides for Inventions that are not considered patentable.

a. an invention which is frivolous or which claims anything obvious contrary to well established natural laws;
b. an invention the primary or intended use or commercial exploitation of which would be contrary 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.
Explanation.—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;".;
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 therefore 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 programme 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 game;
n. a presentation of information;
o. topography of integrated circuits;
p. an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”

Section 4 also bars invention relating to atomic energy from patentability.