Patent and its Patentability



Patent is a limited exclusive monopoly right granted by the government of India for an invention to the inventor or assignee as a territorial right in consideration of disclosure of the invention to the Government. In simpler words, Patent is a protection given to inventor for his inventions for a limited period of time to safeguard the interests of the inventor. Patent Laws of India & Brazil have the highest standards in the world. In India, Patent Act, 1970 deals with the patent. It is a negative right excluding the others from using invention in any manner except upon license or assignment. It is limited because it can only be protected for 20 years from the date of filing the application. After 20 years, it becomes the part of public domain.

Conditions of Patentability

Invention: Section 2(j) defines “invention” which means a new product or process involving an inventive step and capable of industrial application.

The patent is granted to a product or a process which has to be new/novel, non-obviousness and is capable of industrial application.

Novelty: Invention shall be new which has not been yet anticipated in any publication in any document or used anywhere before.

Non-obviousness: Invention must include an inventive step and should not be obvious to a person skilled in the art.

Industrial Applicability [Section 2 (ac)]: The invention must have commercial viability and utility. Invention must be useful at an industrial scale.

New invention: Section 2(l) defines “new invention” which 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.

Inventive Step: Section 2(ja) defines “Inventive Step” which 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.

This definition is problematic in a sense that an invention can be granted even if it has economic significance only and therefore, it invention having only an economic significance dilutes the requirement of technical advancement.

Non-Patentable Subject Matters

The Patents Act of 1970 discusses subject matter exclusions in Section 3 – "What are not inventions?" There are 15 clauses (a) to (p) {(g) omitted} exceptions to the subject matter. An invention must not be considered an invention under the Act if it fits into any of the categories specified in Section 3, even if it is novel, non-obvious, and useful.

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Patent File

Since TRIPS Agreement is the constitution of global IPRs, every contracting state has to construct their IP legislations harmoniously with TRIPS. Even while the 1970 Act originally barred some subjects from patentability, the TRIPS mandate is what ultimately led to the revision and fool proofing of this section. India joined the TRIPS agreement in 1995. A ten-year transition period was granted to developing countries, including India, to ensure that their national intellectual property laws complied with TRIPS regulations. Three changes were made to the Patents Act in 1999, 2002, and 2005 to bring it into compliance with TRIPS. The 2005 change is reported to have made the Indian Patents Act consistent with TRIPS.

Apart from the following clauses of S.3, none were affected by the adoption of TRIPS:

a) Contrary to public order or morality [Sec. 3(b)]

“an invention the primary or intended use or commercial exploitation of which would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.”

Commercial exploitation of anything that seriously harms the environment, plant, or animal life can be broadly interpreted to include nearly anything, and it can be considered an offensive weapon against patent seekers.

b) Mere Discovery [Sec. 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.”

This clause makes a separate distinction between an invention and a discovery. Microorganisms, nucleic acid sequences, proteins, enzymes, chemicals, etc. that are directly isolated from nature are not patentable subject matter, as per Section 3(c) of the Act. However, it is possible to regard the processes (human intervention) used to isolate these products as being subject to the requirements of Section 2 (1) (j) of the Act. Consequently, if a new kind of microorganism is discovered to be occurring naturally, it would be considered a discovery rather than an invention and would not be eligible for patent protection.

c) New form of known substance [Sec. 3(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.”

The 2005 amendment, which modified S. 3(d), may have been the most meticulously crafted. The structured language of the provision ensures that large pharmaceutical companies will be unable to exploit the patent system's shortcomings. Pharmaceutical companies typically file for secondary patents in order to eventually have the term of their current patents extended. We call this phenomenon "patent ever-greening." It prohibits patenting the mere discovery of a new form of an already existing or known substance unless the discovery enhances the substance's established efficacy. This would stop the patenting of refined versions of already-existing or known compounds that don't improve their known efficacy.


In conclusion, this article offers a comprehensive analysis of India's patent laws, covering the underlying ideas, criteria for patentability, and exclusions. It is aptly shown how important patents are as a limited exclusive monopoly, highlighting the delicate balance that must be drawn between encouraging innovations and guaranteeing public access to knowledge after a reasonable amount of time.

The conditions that inventions must fulfill to be awarded patent protection are made clear by the well-articulated standards of patentability, which include novelty, non-obviousness, and industrial application. The careful examination of the meaning of "inventive step" raises legitimate worries over the potential dilution of technical advancement criteria, which justifies more investigation into this area of the law.

The exploration of non-patentable subjects, such as public order, morality, mere discovery, and new forms of known substances, highlights the legislative effort to conform to international standards, most notably the TRIPS Agreement. The critical examination of the clauses reflects a keen awareness of the potential misuse of patent rights, particularly in the pharmaceutical industry, and the measures taken to curb practices like "patent ever-greening.

Author : Anadhya, in case of any query, contact us at Global Patent Filing or write back us via email at




3. Novartis AG v. Union of India, 2007 SCC OnLine Mad 658

4. Novartis AG v. Union of India, (2013) 6 SCC 1

5. Patents (Amendment) Act, 2002 (Act 38 of 2002)

6. Patents Act, 1970 (Act 39 of 1970) as amended by Patents (Amendment) Act, 2005 (Act 15 of 2005)-

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