Introduction
In India, not all inventions can be patented. The Indian Patents Act, 1970 ("Act") outlines certain categories known as non-patentable subject matter. These are ideas or innovations that, even if new or useful, cannot be granted a patent for legal, ethical, or practical reasons. For instance, inventions that are frivolous, or contrary to public order or morality, or discoveries of scientific principles, mathematical methods, or mere discoveries of living or non-living things in nature, traditional knowledge, or computer programs per se, business methods, and artistic works. Understanding what cannot be patented is crucial for inventors to focus their efforts on ideas that are legally protectable, ensuring they save time, effort, and resources in the patent process.
WHAT ARE NOT INVENTIONS?
Sections 3 and 4 are the most important Sections of the Act that define inventions not considered patent eligible in India.
Section 3(a) excludes from patentability any invention that is frivolous or clearly violates well-established natural laws, like a perpetual motion machine, or something that lacks technical substance and is merely absurd or speculative, such as time travel, teleportation, or mind-reading without demonstrable technology. By demonstrating practical utility, scientific validity, and market viability, one can strengthen the case and increase the likelihood of obtaining patent protection.
Section 3(b) excludes from patentability any invention that may be harmful to human, animal, plant, or environment. Also, inventions that are unethical, or socially disruptive, or whose primary or intended use could be contrary to public order or morality are not allowed. In ITC Limited v. Controller of Patents, [IPDPTA No. 121 of 2023], the Calcutta High Court adjudicated on the applicability of Section 3(b) on a device and method for generating and delivering nicotine aerosol, since nicotine is harmful to public health and thus, contrary to public morality. The Hon'ble Court stated that Section 3(b) must be applied based on the actual intent and use of the invention, not on speculative harm. The Court emphasized that public health or morality concerns cannot serve as a blanket bar when the product is lawfully sold and regulated.
Section 3(c) of the Act excludes inventions related to the mere discovery of a scientific principle, abstract theory, or any living or non-living substance occurring in nature, such as a plant, mineral, or a natural compound. However, if a person applies such discoveries in a novel, inventive, and industrially useful way, such as creating a new product or process, they may be eligible for a patent. In Diamond Star Global SDN BHD v. Joint Controller of Patents [2023:DHC:2316], the Delhi High Court clarified that if a natural substance is processed or used in a unique and inventive way, it may qualify for patent protection. Thus, emphasizing that the key distinction lies in whether the claimed invention transforms the natural substance in a way that adds technical value or utility beyond its natural state.
Section 3(d) prevents the patenting of new forms of known substances, such as alts, esters, ethers, polymorphs, metabolites, pure form, particle size, and isomers are not patentable unless they demonstrate a significant enhancement in therapeutic effect shown by comparative data such as clinical trial results or pharmacodynamics/ pharmacokinetic studies. Similarly, mere discoveryof any new property or new use of a known substance cannot be patented. This provision is specifically designed to prevent "ever greening," a practice to extend the life of existing patents by making minor, non-therapeutic modifications to known drugs. In the matter Novartis A.G. v. Union of India ([2013] 13 S.C.R. 148), Novartis challenged the rejection of a patent application on the beta crystalline form of Imatinib Mesylate used in its cancer drug Glivec. The company argued that this new form was more stable and exhibited better bioavailability. The Hon'ble Supreme Court clarified that the word "efficacy" and the test of efficacy would depend upon the function, utility, or purpose of the product. The Court upheld the rejection, stating that in medicine, the test of efficacy can only be therapeutic efficacy, and improved physical properties like stability or bioavailability do not meet the "efficacy" threshold. This judgment reinforced the principle that patent protection cannot be granted for incremental modifications unless they result in meaningful clinical benefit.
Further, Section 3(d) states that a mere use of a known process, machine, or apparatus is not patentable, unless it results in a new product or incorporates at least one new reactant. However, the diverging rulings from the Indian Courts have raised concerns about what is to be considered as a known process. For instance, in Tapas Chatterjee v. Assistant Controller of Patents and Designs,[C.A.(COMM.IPD-PAT) 18/2022 & I.A.3580/2022],the Delhi High Court upheld the rejection, emphasizing that merely combining known processes from prior art without demonstrating technical advancement does not qualify for patent protection. However, in Annikki v Assistant Controller of Patents and Designs ((T)CMA(PT) 70 of 2023), the Madras High Court held that the mere use of a known process presupposes a single, established process that does not result in a new product or involve a new reactant. Unless the prior art itself discloses the precise combination of processes, their amalgamation cannot be equated with a 'known process' for the purposes of this exclusion. Thus, a coherent framework is still awaited, and until then, claims ought to be drafted with evidence showing the advancement over any known process.
Section 3(e) excludes from patentability if two or more components are mixed and the result doesn't show any synergistic effect or unexpected technical advancement. The law aims to prevent patents on the additive effect of combinations. For example, mixing two known compounds that individually provide moisturizing and cleansing effects would not qualify for a patent unless the combination yields a new, enhanced property such as improved absorption or stability that is not predictable from the individual ingredients. In Novozymes v. Assistant Controller of Patents ((T)CMA(PT) 33 of 2023), the Madras High Court accepted Novozymes' argument and emphasized that experimental data demonstrating enhanced performance or synergy is sufficient to overcome objections under Section 3(e).
Section 3(f) excludes from patentability any invention formed by just putting together known devices or the juxtaposition of known features in a known way. In other words, if each component works independently and the combination does not produce any new or enhanced result, the invention is not considered patent-worthy. It is essential to show that the removal of any one component would disrupt the system's functionality, indicating that the invention exhibits synergy where the combined effect exceeds the sum of individual parts. Supporting documentation, such as flowcharts, interaction diagrams, or performance comparisons, can help establish this integration. In summary, the invention must go beyond a "mere workshop improvement" and reflect a genuine technical advancement. A notable case in this context isBiswanath Prasad Radhey Shyamv. Hindustan Metal Industries[1978] Insc 255, where the Hon'ble Supreme Court agreed with the appellant and held that in order to be patentable, an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement, and must independently satisfy the test of invention or an inventive step. Similarly, in the matter K. Manivannan v. Chairman, Intellectual Property Appellate Board & Others (2017), the Madras High Court emphasized that Section 3(f) excludes only those inventions that are mere aggregations of known devices without any functional synergy.
Section 3(h) excludes from patentability any "method of agriculture or horticulture". This provision means that techniques or processes directly related to growing crops or plants, such as irrigation methods, pruning techniques, or soil treatment processes, cannot be granted a patent in India. The rationale behind this exclusion is to keep essential farming practices freely accessible to all, especially in a country where agriculture is a primary source of livelihood. However, the law draws a clear distinction between cultivation methods (which are excluded) and agricultural innovations such as tools, machines, or compositions for plant treatment that may be patentable if they satisfy the criteria of novelty, inventive step, and industrial applicability. A notable case illustrating this distinction is Decco Worldwide Post Harvest Holdings B.V. & Anr. v. Controller of Patents and Designs(AID NO. 11 OF 2021), wherethe Calcutta High Court disagreed, and remarked that Section 3(h) is method of agriculture or horticulture which does not contemplate treatment of plantsto render them free of disease whereas Section 3(i) deals with the process of treatment or prevention and does not include plants. The Hon'ble Court emphasized that Section 3(h) covers traditional methods of agriculture, and the treatment of plants does not fall within the purview of non-patentability. This case highlights the importance of distinguishing between routine agricultural practices and inventive technologies that support plant health and productivity.
Section 3(i) excludes from patentability any process for treating humans or animals, whether medicinal, surgical, curative, diagnostic, or therapeutic in nature. This provision covers methods intended to heal, prevent disease, or improve the economic value of animals or their products. The intent is to safeguard public health and ensure that medical practitioners, veterinarians, and healthcare providers can freely use or perform medical procedures without being restricted by patent rights. In Kemin Industries Inc. v. Controller of Patents(Madras High Court, ((CMA(PT). No.46 of 2024),the Madras High court clarified that if the claim had pertained to a method of administering a drug or feed to an animal or bird - for instance, poultry - so as to fatten the same and thereby increase either its economic value or that of the meat, it would fall within the scope of Section 3(i)…cannot be extended to a method of supplementing an animal feed merely because the use of such animal feed may ultimately result in improving the economic value of the animal/poultry to which such feed is administere. This case illustrates that while Section 3(i) blocks patents on direct treatment methods, it does not necessarily exclude products or processes that indirectly support health or performance.
Section 3(j) excludes from patentability any invention related to plants and animals, whether it's the whole organism or just a part like seeds, species, or varieties. It also bars patents on essentially biological processes used for their production or propagation. This means that no one can claim ownership over naturally occurring life forms or the traditional methods used to grow or breed them. This provision ensures that farmers and communities retain their rights over seeds and biodiversity, preventing corporations from monopolizing natural resources through patents. However, inventions related to microorganisms that are genetically modified or engineered by human intervention are eligible for patents. In the matter BTS Research International Pty Ltd v. Controller of Patents (IPDPTA 56 OF 2023), the applicant sought a patent for a method involving the fusion of human and mouse cells to create hybrid cells but was rejected by the Patent Office. The court held that such inventions, which go beyond natural processes, may be considered patentable.
Section 3(k) excludes from patentability any invention related to a mathematical or business method, a computer programme per se, or an algorithm. This means that if someone tries to patentabstract concepts such as mathematical formulas, business strategies, or standalone software code, the application will be rejected unless the software code produces a technical effect and is tied to a hardware implementation. A landmark judgment in Ferid Allani v. Union of India (W.P.(C) 7/2014 & CM APPL. 40736/2019) clarified that a computer-related invention demonstrating a 'technical effect' or a 'technical contribution' is patentable, even though it is based on a computer program. Similarly, the Court reiterated this position in Microsoft Technology Licensing, LLC vs. The Assistant Controller of Patents and Designs(C.A.(COMM.IPD-PAT) 29/2022).
Section 3(l) excludes from patentability any literary, dramatic, musical, or artistic work, or any other aesthetic creation, including cinematographic works and television productions. Such work is a creative and artistic expression and is protected under copyright law, not patent law, as they do not involve a technical invention that solves a problem.
Section 3(m) excludes from patentability any invention related to a mere scheme or rule, or method of performing a mental act or method of playing a game, such as a new way to play chess or a strategy for solving a puzzle mentally.These are considered abstract ideas, not inventions with practical or industrial applications. However, if a method involves a technical process that results in a tangible or measurable outcome, it may still be patentable. A recent case of Robert Bosch Limited vs. The Deputy Controller of Patents and Designs (C.M.A. (PT) No.31 of 2023), where the Madras High Court ruled that the method was technical in nature and involved real-world parameters, such as fuel and ambient temperatures, and producing a technical effect like controlling fuel preheating in an engine, not just mental steps. Therefore, it was not excluded under Section 3(m) and deserved reconsideration for patentability.
Section 3(n) excludes from patentability any invention that is merely a presentation of information, such as displaying a chart, graph, report format, or dashboard layout, unless it involves a novel technical process.
Section 3(o) excludes the "topography of integrated circuits" from the scope of patentable subject matter. This means that any invention claiming only the layout or configuration of electronic components on a semiconductor chip is not recognized as an invention under the Act, irrespective of its originality or technical complexity. However, if the invention relates to a method of fabrication rather than just the layout, and it demonstrates a clear technical advancement beyond the layout, or a novel manufacturing process, it may qualify for patent protection.
Section 3(p) excludes from patentability any inventions that are essentially based on traditional knowledge or are simply a combination of known properties of traditionally used components. One of the most famous examples is the Turmeric case, which in the year 1995, was granted a Patent by the United States Patent and Trademark Office (USPTO) for use in wound healing. After the Council of Scientific and Industrial Research (CSIR) challenged the Patent with documented evidence, the U.S. Patent Office eventually revoked the patent. In the case of Zero Brand Zone Pvt. Ltd. & Jayashree Anand v. Controller of Patents((T)CMP(PT).146/2003), the Madras High Court rejected the challenge stating a patent for a lamp made using ingredients such as, mixture of cow-derived products and leaves from neem, lemon, and peepal, are traditionally known and thus, lack novelty. The intent is to prevent the exploitation of ancient wisdom and community knowledge for private gain. However, if an invention builds upon traditional methods to achieve technical advancement, it may be patentable even if it uses traditional ingredients.
INVENTIONS RELATING TO ATOMIC ENERGY
Section 4 explicitly excludes from patentability any inventions related to atomic energy, as defined under Section 20(1) of the Atomic Energy Act, 1962. This provision reflects India's strategic and national security interests in controlling technologies related to nuclear science and atomic energy. This includes inventions related to nuclear fuel production, reactor design and operation, radiation shielding, isotope separation, and any process or apparatus that could be used in nuclear weapons or energy generation. The Indian Patent Office routinely refers such applications to the Department of Atomic Energy (DAE) for clearance, and if the DAE determines that the invention falls under Section 20(1) of the Atomic Energy Act, the application is rejected. The decision of DAE is not appealable.
Conclusion
In conclusion, Sections 3 and 4 of the Indian Patents Act clearly define what cannot be patented in India. Together, these sections act as a filter to prevent misuse of the patent system and to protect public interest. By understanding what falls outside the scope of patentability, inventors and businesses can focus their efforts on creating truly novel and useful inventions that meet legal standards and benefit society.
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