Are all inventions patentable?

Patent means a grant of some privilege or authority made by the Government to one or more individuals. The term ‘Patent’ acquired statutory meaning in India, when the Patent Act, 1970 was promulgated. Patent under the Act is granted from the Government to the inventor for a limited period of time, the exclusive right to make, use, exercise and lend his invention. It conveys to the inventor, substantive rights and secures to him the valuable monetary rights which he can enforce for his own advantage either by using it himself or by conveying the privilege to others. After the expiry of the period, of which exclusive right is granted to the inventor the invention can be put to use by any person other than the one to whom a patent had been granted. The person to whom the patent is granted is called the ‘Patentee’.  Therefore, patent is a monopoly right granted by a state to an inventor for a limited period of time in respect of his invention within the meaning of the section 2(j) of the Act. Accordingly, a patentable invention means a new process or product involving an inventive step and capable of industrial application. Inventive step means a feature of an invention that involves technical advances as compared to the existing knowledge or having economic significance or both that makes the invention non-obvious to the person skilled in the art.

The protectable subject matter of a patent is an invention. The question whether there is an invention or not is a question of fact in each case. What is protected is the result of an invention or the resultant product. An improvement on something known is a subject matter of a patent, provided it results in a new product or process or more useful or a more economical product or process. A patentable combination is one in which the component elements are so combined as to produce a new result or to arrive at an old result in a better or more expeditious or more economical manner.  If the result produced is either a new article or a better or a cheaper article than before, the combination will be entitled to a Patent. The mere combination of two or more elements without exercising any inventive faculty and without involving an inventive step cannot be a subject matter of Patent. An alleged invention means something which is alleged to be a manner of new manufacture even though it may not be so. However, such an invention of a manner of new manufacture has to have the elements of novelty, utility and non-obviousness to qualify it for the grant of Patent. Thus, to be patented an invention has to be a new product or process involving an inventive step and capable of industrial application.

Hence a patentable invention has the following features:

1)      Invention must be new- something which is already known is not patentable. An invention is deemed to be new if it does not form a part of the knowledge available to the public on the priority date. Priority date is usually the date on which the applicant for patenting his invention first makes the application. It may be noticed that a patent is granted for a new product or process. It means a patent can be obtained for an invention which is absolutely new as well as for a process of manufacture or improvement of an article (tangible).

2)      Invention must involve an inventive step- inventive step means something that is non-obvious to a person skilled in the art i.e it must not follow plainly or logically from what is already known. The question whether an invention involves an inventive step has to be decided in the context of any prior publication or public use. The inventive step should involve some technical advancement in comparison to the existing knowledge or economic significance or both. Many common examples of an inventive step can be cited from pharmaceutical, chemical or mineral processing industries where the process of improvement can result into efficient use of resources.

3)      Invention must be capable of industrial application- to be patentable the invention has to capable of industrial application. It can be made or used in an industry. However, industry in this context does not necessarily imply the use of machinery or manufacturing of an article. It may include any useful, practical activity as distinct from purely intellectual or aesthetic activity.

The inventions which do not qualify for patent can be summarized as follows:

1)      Frivolous or contrary to natural laws-an invention which is frivolous or which claims anything obviously contrary to well-established natural laws. For example- an invention which claims a perpetual motion machine will not be patentable because the claim would be contrary to well- established laws of nature. Similarly, a machine claimed to be giving output without input or 100% efficiency may be said to be frivolous and hence non-patentable.

2)      Contrary to public order or morality or human, animal ore plant life or health or environment- an invention is non-patentable if 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. For example- a new type of gambling machine or method for counterfeiting of currency.

3)      Discovery of scientific principles or abstract theory of living or non-living substances-mere discovery of a scientific principle of the formulation of an abstract theory or discovery of any living thing or non-living thing occurring in nature, is not an invention. A discovery only unveils a hidden thing.

4)      Mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of a known substance or the mere discovery of new use for a known substance.

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 is not an invention.

6)      The mere arrangement, re-arrangement, duplication of known devices each functioning independently of one another in a known way is not an invention.

7)      A method of agriculture, horticulture is excluded from patentability. For example- a method of producing a plant in a green house, or producing improved soil or producing mushrooms, etc.

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 is not an invention. For example- method of treating sheep for yielding wool, curative method includes a method of cleaning plague from teeth.

9)      Micro-organisms, other than the once discovered from the nature, may be patentable. For instance- genetically modified micro-organisms may be patentable subject to other requirements of patentability.

10)  Mathematical, business methods, computer programs per se and algorithms are not inventions and hence not patentable.

11)  Literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever are not patentable such works fall within the domain of Copyright Act,1957.

12)  A mere scheme, rule, method of performing mental act, method of playing games is not an invention, because they are considered as outcome of mere mental process.

13)  A presentation of information is not patentable. Any manner, means, method of expressing information whether visual, audible or tangible by words, codes, signals, symbols, diagrams or any other mode of representation is not patentable.

14)  Topography of integrated circuits is not patentable.

The object of the patent law is to encourage scientific research and industrial progress in the state. It promotes the invention genius. It provides protection to inventors by conferring them a monopoly from commercial exploitation of their inventions. It induces industries to undertake research and development. It maintains the flow of invention, one invention leading to another. It is an important source of technical information.