Let us start from where we left the previous article last month – part 1 of “What are not patentable“. We had seen a number of works which are not patentable under the Patents Act, 1970. Today we are going to see the remaining cases where one cannot obtain a patent.
AGRICULTURAL or hoRticultural methods
A method of agriculture or horticulture is not an invention [ref. 1]. For example, methods performed on an open field like tillage or seed sowing or methods like greenhouse farming are not patentable. Even if you find out a new form of cultivation or soil preparation, you cannot obtain a patent in India. However, if you develop an automatic seed sowing machine, that may be patentable.
Tips: Agricultural methods are not patentable but agricultural machinery may be patentable.
medical treatment processes
According to the Patents Act “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 [ref. 2].
Confused with a lot of words? Simplifying it we can say that methods for human and animal treatment are not inventions and hence not patentable. For example, dosage of antibiotics or a method of vaccination or a surgical process is not patentable. It may be noteworthy that a new process for manufacturing a medicine is patentable but the medicine in itself is not.
However, this provision does not restrict any diagnostic device or instrument from a patent. For example, Indian patent 237854 was granted for a device to detect antibodies to HIV and p24 antigen. But whether such cases count as a process or a device depends upon the decision of the patent examiner. The Patent Office may deny to issue a patent for a device merely replicating a well established treatment process.
Tips: Medical treatment methods are not patentable but it may be possible to earn a patent for a medical device. A new process for manufacturing a medicine is patentable but the medicine in itself is not.
Copyright vs. patent
A mathematical or business method or a computer programme or algorithm is not considered as an invention [ref. 3].
Accordingly, one cannot expect to get a patent for a new mathematical method to solve the Navier-Stokes equation. On the same ground Electronic Navigation Research Institute was denied patent for their method of calculating Chaos Theoretical Exponent value (CTEV) in 2013. This type of work would undoubtedly attract a lot of attention in scientific journals but patent is not the relevant recognition. Similarly, a business method like sales strategy is not patentable.
Computer programmes and algorithms are not patentable. For example, if IRCTC create a more efficient system for their online ticket booking system, that is a great improvement from the users’ perspective, but they cannot obtain a patent neither for the software programme nor for the algorithm. However, both can be protected under another form of intellectual property, i.e. copyright under the Copyright Act, 1957. Unlike India software is patentable in the USA and the European Union has also examined software patentability through a draft derivative. The WIPO provides a few useful tips when considering patent protection of software related inventions.
Other copyrightable works include a literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic works and television productions but these are not inventions [ref. 4].
Tips: You can protect computer programme, algorithm and various forms of artistic work as copyrights, not as patents.
MethodS
A mere scheme or rule or method of performing mental act or method of playing game is not considered an invention [ref. 5]. A method of playing a game such as solving a crossword puzzle is not patentable. This provision allows players to play games in all possible manners without any restriction. Imagine M. S. Dhoni patenting “helicopter shot” that prevents others from playing it! Seems funny, right?
A presentation of information is also not considered as an invention [ref. 6]. According to this provision any method of conveying information by either spoken words, symbols or visual display and recorded in a carrier is not patentable.
Tips: Methods of performing a mental act or playing a game, and presentation of information are not patentable.
Electronics integrated circuits
Topography (layout-design) of integrated circuits is not an invention [ref. 7]. Instead it can be protected under the Semiconductor Layout Designs Act, 2000.
traditional knowledge
Finally, traditional knowledge is not considered as an invention [ref. 8]. According to the Patents Act “an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components” is not an invention. However, any improvement to the traditional methods or processes may get a patent.
This completes identifying the works which are not inventions under the legal framework of India. We have seen that some of these can have different forms of protection under the legal provisions of copyrights, semiconductor design etc. We have also seen that slight differences exist in some countries for some of the cases we discussed. In the next article I intend to cover some inventions where the Indian Patent Office may deny a patent to ensure national security and defence secrecy. With that we will fairly complete our understanding about the determining factors for a patent.
References:
The following sub-sections of section 3 of the Patents Act, 1970:
- 3(h)
- 3(i)
- 3(k)
- 3(l)
- 3(m)
- 3(n)
- 3(o)
- 3(p)
About the author: The author is an experienced Mechanical Engineer and inventor.
Next article: Inventions Subject to Security and Secrecy. Expected during the second half of April 2018.