Dear readers, in my previous article – “Idea, Invention and Patent” – I tried to draw a picture about what an invention is and what makes it patentable. I hope it was useful to some of you. It is time to develop the learning further to know what are not legally considered as inventions or what are not patentable despite appearing like inventions. To keep the amount of information simple and short I will cover the topic in two parts. All the information given here are within the framework of the (Indian) Patents Act, 1970. Unlike patentable inventions, some of these cases may not be so similar throughout the world. This article also talks about a few such key differences.
An Invention contradicting natural laws
Would you like to have a generator that gives electricity without burning fuel or consuming any other source of energy? No doubt, most of us may like to have one but at the same time we ourselves know that it is not to be. Such a device clearly violates the law of energy conservation that denies us free energy. Any product or process like this device, which cannot be proven with sound scientific methods and concept or that contradicts well established natural laws, is not considered as an invention [ref. 1]. Anyone can still challenge a natural law in other scientific forums, if there are enough reasons, but the patent office is possibly not the most relevant place for that.
Tips: Examine an idea early for a possible contradiction with any natural law. If you are not sure then ask others knowledgeable in the related area.
An invention Contrary to public welfare
According to the Patents Act a product or process is not an invention if its intended use 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 [ref. 2].
I believe this would appear logical to most of us. One should not expect to patent a bomb for mass destruction, which is a serious threat to human life. Products or processes that go against human morality, e.g. unethical cloning, are not inventions. However, there may be instances where products likely to fall into the above category have been granted patent, possibly when the positive aspects of the said invention are likely to outweigh the negative ones. For example, the Indian Patent Office granted patent no. 234015 for an improved explosive device for mining operations. In this case the intended use – mining, a positive intention with benefits – could have paved the way for this patent.
Tips: An invention in general should not be harmful to life or environment.
A scientific DISCOVERY is not patentable
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 is not an invention [ref. 3].
This prevents certain Mr. Issac Newton from holding his laws of motion with him for 20 years or Mr. Charles Darwin from patenting the many new species he discovered in the Galapagos islands. This intends not to restrict scientific knowledge with a few. By the way, I am no way suggesting that Newton or Darwin tried patenting their theories.
If you have discovered anything new, that is remarkable and surely adds value to scientific knowledge, but is not patentable. However, if you are the first to develop a product or process based on the new discovery, that may be patentable.
Tips: Mere discovery is not an invention but you can derive a patentable product or process out of it.
Living Beings are not inventions
We have seen that discovery of living beings is not an invention [ref. 3]. Not only limiting to discovery alone, the patent law generally restricts patenting of plants and animals [ref. 4]. It says – 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, are not inventions.
It is noteworthy that micro organisms are patentable (not the naturally occurring ones though). As part of the patent application process the subject micro organism is to be deposited for examination. The Budapest Treaty on the International Recognition of the Deposit of Microorganism ensures that a deposit at any recognised International Depositary Authority (IDA) is accepted by all the countries part of the treaty. This saves an applicant from depositing in every country he intends to file an application.
Unlike India, plants can be patented in some countries including the USA.
Tips: Plants and animals are not recognised as inventions but micro organisms are patentable.
new form or use of a known substance
Discovery of a new form of a known substance is not recognised as an invention, unless it improves known efficacy (effectiveness) of the substance [ref. 5]. Suppose if you discover a form of bleaching powder that remains liquid in normal environment. It is not regarded as an invention. However, if the new form improves its disinfecting properties, it may be patentable.
Let us imagine another case – today you are the first person to discover that the good old bleaching powder can remove tough stains and thus can be used for cleaning purpose too. Unfortunately it is not an invention as you have just discovered a new property/use for a known substance.
Similarly, mere use of a known process, machine or apparatus is not an invention, unless such known process results in a new product or employs at least one new reactant [ref. 5].
Tips: Mere discovery of a new form or use of a known substance or device is not patentable. However, that does not stop one from trying the new form or use in a novel product.
admixture and re-arrangements
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 patentable [ref. 6]. Imagine you have mixed common salt, pepper and sugar to have a mixture with all the respective tastes present. This mixture is not an invention. It can be if the mixture gives a fourth distinct taste.
Similarly, mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way is not an invention [ref. 7]. For example, you have combined a known type of temperature sensor and pressure sensor to meet a particular demand. Here the two sensors are merely integrated into a single body but they perform their functions independently without affecting or being influenced by the other one. This is not patentable but if you can achieve the two functions from one single sensor, that may be patentable.
Tips: Mere admixture and rearrangement are not patentable. However, something unique in the product due to this change can make it patentable.
That is all for today. In the next part I will be back with some more interesting provisions including software, copyrightable works, medical treatment etc. Please use the comment box if you have any questions; we will get back to clear the doubts.
Following sub-sections of section 3 of the Patents Act, 1970 (What are not inventions):
About the author: The author is an experienced Mechanical Engineer and inventor.
Next article: What are not patentable (part 2). Expected during second half of March 2018.