Brief Introduction on

Non Patentable Invention under Patent Act, 1970

Section 3 and Section 4 of

Indian Patent Act
“Non Patentable Inventions”

By:
Ruchi Yadav
Registered Patent Agent
Hind Intellectuals
Table of Content
1. What is an intellectual property?
2. Brief introduction of Patent
3. Section 3 (Non Patentable Inventions) and Section 4 (Related to Atomic energy)
of Indian Patent Act
• Section 3 (a): Inventions contrary to well established natural laws;

• Section 3 (b): Commercial exploitation or primary use of inventions which are contrary to public order
or morality;

• Section 3 (c): scientific discoveries;

• Section 3 (d): mere discoveries of new forms of known substances;

• Section 3 (e): simple admixture that just aggregates the qualities of its components;

• Section 3 (f): simple arrangement, re-arrangement, or duplicate of known devices;

• Section 3 (g): Omitted from the Act.

 Table of Content Continue…
• Section 3 (h): methods of agriculture or horticulture;
• Section 3 (i): diagnostic, therapeutic and surgical methods for the treatment of
humans or animals;
• Section 3 (j): biological processes for production or propagation of plants and
animals;
• Section 3 (k): mathematical or business methods or computer programs per se or
algorithms;
• Section 3 (l): literary, dramatic, musical or artistic work or any other aesthetic
creation;
• Section 3 (m): method of performing mental act;
• Section 3 (n): a presentation of information;
• Section 3 (o): topography of integrated circuits;
• Section 3 (p): traditional knowledge
 1. INTELLECTUAL PROPERTY RIGHTS

INTELLECTUAL PROPERTY: Intellectual property (IP) refers to creations of the mind, such as
inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

INTELLECTUAL PROPERTY RIGHTs: Intellectual property rights are the rights given to
persons over the creations of their minds. They usually give the creator an exclusive right over the
use of his/her creation for a certain period of time.

TYPES OF INTELLECTUAL PROPERTY:

Patents,
Trademarks
Copyright
Industrial Designs
Geographical Indication
Trade secrets
Semiconductor Integrated circuit’s layout – Design
 2. Patent
A Patent is an exclusive right granted for an invention. In other words, a patent is
an exclusive right to a product or a process that generally provides a new way of
doing something, or offers a new technical solution to a problem.

Patentability Criteria: A new product or process which involves an inventive step

and capable of being made or used in an industry and should meet following
criteria.
a) Novelty means the matter disclosed in the specification is neither published in
India nor anywhere else where before the date of filing of patent application in
India.
b) Inventive step means the invention is not obvious to a person skilled in the art in
the light of the prior publication /Document.
c) Industrially applicable means the invention should possess utility, so that it can
be made or used in an industry.
Duration of Patent: 20 Years from the date of filing of Application.
According to the Patent Act (of India), those that fall under the category of
“Inventions” can be patented, as defined in Section 2 (j) of the Act.

Section 2 (j): It involves anything that is novel, capable of industrial application,

and is not frivolous (subject-matters eligible for patentability).

The invention should be of absolute novelty as neither it has been used nor
published in any part of the world.

Section 3 and Section 4 of the Patent Act is highly debatable and deals with the list
of exclusions that are non-patentable that do not satisfy the above conditions.
 3. Section 3: Non Patentable Inventions

Section 3 of the Indian Patents Act stipulates what is not considered an invention
under the law and is therefore not patentable in India

Following are not the “inventions” under the meaning of this act:
•scientific discoveries;
•mere discoveries of new forms of known substances;
•methods of agriculture or horticulture;
•diagnostic, therapeutic and surgical methods for the treatment of humans or
animals;
•plants and animals other than micro-organisms;
•mathematical or business methods or computer programs per se or algorithms;
• literary, dramatic, musical or artistic work or any other aesthetic creation;
• inventions being frivolous or contrary to public order, morality, public
health, the environment, etc.
• schemes, rules or methods of performing mental acts or methods of playing
games;
• presentations of information;
• topography of integrated circuits;
• traditional knowledge
 Section 3 (a)
An invention which is frivolous or which claims anything obviously contrary to well
established natural laws

Examples:
 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 machine that gives more than 100% performances.
 Section 3 (a)
Case study of Patent Application No. 771/MAS/2002

Patent application entitled “Gravity wheel–a perpetual motion machine”

• This invention claimed to produce a powder delivery wheel, which is a perpetual motion
machine working by gravitational force.
• This machine was claimed to be never stopped except human means.
• The claimed machine was a stationary engine of the unlimited size which was capable of
continuous power output from gravity force and the gravity force can be universally available
in any planet.
• The patent was abandoned under Section 21(1)on the ground of Section 3(a)as its
performance was contrary to the law of thermodynamics.
 Section 3 (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;
Explanation: 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,
comes under Section 3(b)
For Example:
 any product/process used to commit theft or a break-in;
 any process of Gambling/ product used for gambling;
 inventions relating to any device, tool, or product, the usage of which could seriously harm
people, animals, or other living things; such as: biological warfare material/ devices,
terminator gene technology, embryonic stem cell;
 Food product falsification or pesticide-related inventions;
 a human cloning-related invention;
 Any innovation pertaining to a product/process for breaking into buildings
 Section 3 (b)
Case study of Patent Application No. 7127/DELNP/2011

• The application specifically disclosed a device for delivering nicotine to a

subject;
• wherein the device comprises a housing compartment consisting of an inlet and
an outlet in communication with each other and adapted so that a gaseous carrier
may pass into the housing through the inlet.
• The Controller said that the applicant had failed to elaborate how the nicotine
delivery device prevents nicotine's addictive effect which can pose risk to the
human health.
• Based this grounds, the Controller rejected the patent stating that the device can
cause serious prejudice to health.
 Section 3(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;
Explanation: something that already existed in nature has just been discovered;
Newton’s Laws, Discovery of micro-organism, Raman effect and Theory of Relativity

Landmark Case: In Bilski V. Kappos,

This case deals with the Patentability of a business method. In this case, Bilski and
Warsaw applied for the patent on hedging risks on commodities trading but their
patent got rejected by the US Supreme Court on grounds that an abstract idea cannot
be patented.
 Section 3(d)
Section 3(d) provides that the following are not inventions –
• The simple act of discovering a new form for a substance that is already known; or

• The mere discovery of a new property, the application for which is already in existence; or

• The simple act of using a machine, apparatus, or process that is already known unless the
known process produces a new product or uses 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;
 Section 3(d)
Landmark Case:
Novartis v. Union of India
Novartis filed an application for grant of patent at the Chennai Patent Office on
July 17, 1998, for chemical compound called Imatinib Mesylate which is a
therapeutic drug for chronic myeloid leukemia and certain kinds of tumours. It is
marketed under the names "Glivec" or "Gleevec".

In the application it claimed that the invented product,

the beta crystal form of Imatinib Mesylate, has more beneficial flow properties
better thermodynamic stability and lower hygroscopicity than the alpha crystal form
of Imatinib Mesylate and further claimed that the aforesaid properties makes the
invented product novel.
 Section 3(d)
Examples:
 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.

Section 3(d) has created a significant impact in determining the patentability of

pharmaceutical derivatives in India.
• Indian Patent Office opposes the concept of “evergreening” which is a practice of
inventors of patented products for extending their monopoly period by various
strategies (for example over associated delivery systems, or new pharmaceutical
mixtures, etc.)
 Section 3(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;
Explanation: A substance generated through a simple admixture
that just aggregates the qualities of its components, or a method for
making such a material.
Note: A blend that exhibits synergistic qualities is not regarded as
merely an amalgamation. Soap, detergent, and lubricants may be
regarded as patented materials.
 Section 3(f)
The mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;
Explanation: there is no functional interrelationship between them, and each
part of the assembly functions independently of the others.
Example: a fan with a light embedded into it that claims to be an invention for
both air flow and light;
 Section 3(h)
A method of agriculture or horticulture;
Explanation: These procedures include customary agricultural methods, cultivation strategies, or
approaches for plant breeding. The goal of excluding certain techniques is to protect the free
interchange of ideas and guarantee that farmers may use crucial agricultural processes without
being constrained by patents.

Examples: conventional agricultural techniques on open fields;

 Asexual methods of plant propagation: This exclusion applies to inventions relating to the
asexual reproduction of plants, such as cloning or grafting.
 method of growing a plant in modified conditions, such as a greenhouse.
 Techniques involving soil improvements;
 Method of mushroom production or algae production;
 Even the method of removal of weeds is deemed ineligible for patent protection due to its
association with plant cultivation.
 Section 3(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.
Example:
 method of treatment of any disease;
 method of physiotherapy;
 method of surgery
 Section 3(j)
Essential biological processes for the production or propagation of animals
and plants is not an invention.
Explanation: 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;
Example: methods of crossing and breeding which are essentially biological
processes are unpatentable.
 Section 3(k)
A mathematical or business method or a computer programme per se or
algorithms;
Explanation:
 Mathematical methods are not defined under any statute; however, they include
 a method of calculation,
 formulation of equations,
 finding square roots, cube roots, and other similar acts of mental skill.
• As per the Guidelines, claims directed as mathematical methods are not
patentable as they are purely abstract or intellectual and have no practical
application. However, inventions with a presence of mathematical formulae to
clarify the scope of the invention are not excluded under this section.
 if the subject matter of the claim is essentially about carrying out business/ trade
and/or a method of buying/selling goods through the web, the same should be treated
as a business method and is not patentable.
 “computer programme means a set of instructions expressed in words, codes,
schemes or in any other form, including a machine-readable medium, capable of
causing a computer to perform a particular task or achieve a particular result.”
 The term ‘per se’ has been included in this clause to ensure that inventions that are
developed using computer program but have in addition to their certain other
features or technical advancements are not rejected under this clause.
Section 3(l): Aesthetic creation is not an invention
any literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions;
Explanation– such activities like writings, painting, sculpting, choreographing,
cinematographing all these which are related to creativity cannot be patented and fall
under the gamut of Copyright Act, 1957.

Section 3(m): a mere scheme or rule or method of performing mental act or

method of playing game;
Explanation- playing a game such as chess, sudoku etc are not considered as
inventions rather these are mere brain exercises and hence are not patented.
Section 3(n): a presentation of information;
Explanation- a mere presentation of information by tables, chars is
not an invention and hence are not patentable, for example, railway
timetables, calendars etc.
Section 3(o): topography of integrated circuits;
Such as semiconductors used in microchips are not patented.
 Section 3(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.
Example: The wisdom that 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 example is the usage of neem as an insecticide or
pesticide.
Section 4: Inventions related to atomic energy
Inventions related to atomic energy are scrutinised for patentability under
Section 4 of the Patents Act, 1970.

According to Section 4 of the Patents Act, 1970, “inventions relating to

atomic energy” defined under Section 20 of the Atomic Energy Act (AE
Act), 1962, are “not patentable”.

Explanation: As from the commencement of this Act, no patents shall be granted for
inventions which in the opinion of the Central Government are useful for or relate to
the production, control, use or disposal of atomic energy or the prospecting, mining,
extraction, production, physical and chemical treatment, fabrication, enrichment,
canning or use of any prescribed substance or radioactive substance or the ensuring of
safety in atomic energy operations.
 References:
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Thank You…