Some time back I was asked by one of the readers of my article, if I can tell him what can be patented and what cannot be; hence this article.
This question appears to the one with a straightforward answer. However, the answer to it is something that is highly debatable, and also varies depending on the country in which one wants to secure a patent.
A simple answer however is, anything that qualifies to be an invention can have a patent granted to it.
In the above answer, the word “invention” is the key word that requires definition.
In US, any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may have a patent granted to it, provided it satisfies all other requirements of patentability.
In India, an invention means a new product or a new process that involves technological advancement and/or has economic significance, which makes that new product or process non-obvious to a person who is skilled in the technology to which the product or process belongs. Additionally, the new product or process should be capable of being made or used in an industry for it to qualify as an invention.
Most of the patent offices provide a simple definition of the word invention. However, they also provide a list of exclusions, which are not considered as inventions. This list is the one that often stirs up debates.
In India, section 3 provides a list of exclusion, and the list with examples is provided below:
1. an invention which is frivolous or which claims anything obviously contrary to well – established natural laws: (Ex:
2. an invention the primary or intended use or commercial exploitation of which would be contrary to law or morality or which causes serious prejudice to human, animal or plan life or health or to the environment; (Ex: A method of hacking into email accounts)
3. 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; (Ex: E = mc2)
4. the mere discovery of any new form of a known substance which does not result in the enhancement of the known efficacy of that substance or 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 process results in a new product or employs at least one new reactant. (This exclusion has been at the forefront of most debates in the pharmaceutical sector)
5. 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. (Ex: Mixture of sugar and colorants in water, which only produces aggregation of properties and synergistic properties)
6. the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; (Ex: A known type of torch connected to a know type of pen. Note, both the pen and torch work independently of each other)
7. a method of agriculture or horticulture; (Ex: a method of growing plants)
8. 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; (Ex: process of carrying out a surgery. Note: processes in this case are not considered inventions. However, systems and apparatuses are still considered as patentable subject matter)
9. 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; (Ex: Cloning of animals)
10. a mathematical or business method or a computer program per se or algorithms; (this exclusion has been debated to great lengths. The debate is essentially because of the “computer program per se” exclusion. Note that, not all software related inventions are considered as “computer program per se”. Hence, the debate is relating to what should be considered as computer program per se, and what should not be)
11. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; (Ex: movies, poems etc.)
12. a mere scheme or rule or method of performing mental act or method of playing game; (Ex: Method of playing chess)
13. a presentation of information; (Ex: Presenting information in the form of a graph)
14. topography of integrated circuits; (Can seek protection under Semiconductor Integrated Circuit Lay-out Designs Act)
15. an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or componenets. (Usage of Nilgiri oil for reducing aches)
Some of the exclusions are straightforward; however, a few are debatable (section 3(d) and 3(k)).
Similar to India, most of the countries have provided with a list of exclusions. Some of the exclusions put forth by other countries may be similar to the ones provided above. It is important to be aware of the exclusion set forth by a country you are interested in before deciding on the patent specification drafting and filing strategy.
To know more about what can and cannot be patented in India, you may read our articles listed below:
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