Law regarding patents in India is governed by The Patents Act, 1970. A patent is a monopoly right given for a limited period of time to a person who have invented a novel product or process through his skills, judgement, and knowledge. Unlike Copyright, trademark and other intellectual property rights, the protection granted is for a shorter period. But then, the protection so granted is very extensive and prevents all kinds of misuse of the same. The core object of this patent system is to encourage scientific research and new technological progresses. According to Section 2(1)(m), a patent is granted for inventions and Section 3 of the Act deals with the subject matter for patent in India. It describes in detail what not are inventions for the purpose of granting the monopoly right. A monopoly of the Patent is the reward of the inventor.[1] Section 2(1)(j) of the Act defines what an invention is. It says, a new product or process involving an inventive step and capable of industrial application. [2] Therefore, for obtaining patent for a product or process should be novel, involve an inventive step and be capable of industrial application. According to Section 2(1)(ja) of the Act, an inventive step is when there is a technical advancement from the existing knowledge or there is an economic significance to it or both. It is also important to note that, the technical advancement and/ or the economic significance should not be obvious to a person skilled in the art. The capability of an invention to be made or used in an industry is what constitutes the requirement of capable to industrial application.[3] By novelty, the law demands that the invention should not have been anticipated or used in the country or anywhere in the world before the date of filing of the application for patent.[4]
Agreement on Trade Related aspects of Intellectual Property Rights
TRIPS Agreement or Agreement on Trade Related aspects of Intellectual Property Rights is the extensive multilateral agreement that deals with Intellectual property rights and have recognised Intellectual Property rights as private rights. TRIPS agreement was born out of a need for a multilateral framework for rules and disciplines dealing with international trade in counterfeit goods.[5] Section 5 of the TRIPS Agreement deals with Patent and Article 27 under the same comprises of patentable subject matter. According to Article 27(1) of TRIPS, any inventions, be it product or process, if it fulfils the conditions of being novel, involving an inventive step and capability of industrial application, patents shall be granted. This is applicable to inventions in all fields of technology. Article 27(2) and (3) of the TRIPS agreement lists out the category of things that may be excluded from patentability. This includes preventing patenting of inventions to protect the public morality, human, animal or plant life and health. Any therapeutic, diagnostic, and surgical methods which are essentially for the treatment of humans or animals may be exempted from granting of patents. Plants and animals and essentially biological processes for production of the same is exempted as well. But Micro-organisms are exception to this clause. The non-biological process and microbiological processes are also an exception to the said clause. For the members to apply this clause, they shall provide through patents or any such law the protection for the plant varieties.[6]
Impact of TRIPS Agreement on The Patent Act, 1970.
The TRIPS Agreement came into force on January 1, 1995. Prior to that The Patent Act, 1970 satisfied the international norms of patentability covering novelty, inventive step, and industrial application. Post TRIPS, for the ease of trade sanctions, all the members were ought to fulfil the obligations under TRIPS to which they are signatory of. To fulfil the same, The Patent Act, 1970 was first amended in the year 1999 retrospectively with effect from January 1, 1995. After that the Act was amended twice in 2002 and 2005 respectively.
The Patent Act prior to the amendments had its subject matters mentioned under Section 3 of the Act. It was a list of categories that were not considered as an invention. The following are the same:
- An invention which is frivolous in nature or is contrary to well established natural laws;[7]
- An invention of which primary or intended use would be contrary to law, morality or injurious to public health;[8]
- An invention where a scientific principle is merely discovered or an abstract theory is formulated;[9]
- An invention which is a mere discovery of new property or new use of a known substance or process respectively; [10]
- An invention which is just an admixture resulting in aggregation of properties or process;[11]
- An invention which is a mere arrangement or re-arrangement of a known aspect;[12]
- A method or process of testing which is applicable during the procedure of manufacture;[13]
- Any method of agriculture or horticulture;[14]
- Any medical, surgical, curative, or prophylactic or other procedure for treatment of human beings or animals and plants to free them from disease or increase the economic value of the same.[15]
The above mentioned nine clauses were the subject matter to which patentability was tested prior to the amendments. The Act listed out certain exceptions to which an invention can be defined or narrowed down to.
In 1999, an amendment was passed to fulfil the TRIPS obligation but no changes were made to the subject matter part in the Act. Hence, the same was followed by the authorities to decide the question of patentability of an invention. In 2002, the next amendment was passed and had major changes in the Section 3 which deals with subject matter. The following are the changes made with respect to Section 3:
- In clause (b), the commercial exploitation of the invention was added which was previously just the primary and intended use of the invention. Further excluded those inventions which caused serious prejudice to human, animal or plant life or health or to the environment.[16] Prior to the amendment, only those inventions which were contrary to law or morality and the ones injurious to public health were excluded.[17] This can clearly be concluded as a step to comply with clause 2 of Article 27 of TRIPS Agreement.
- In clause (c), “discovery of any living thing or non-living substance occurring in nature”, this was added towards the end denoting the invention those are merely discovery of living things or non-living things which is essentially already found in the nature shall not be patented.
- Clause (g) was omitted from the Act.
- In Clause (i), the terms “Diagnostic and therapeutic” was added to include these along with the other types of processes in medical arena. Clause 3(a) of Article 27 of the TRIPS Agreement is incorporated here.
- Clause (j), (k), (l), (m), (n), (o), (p) was inserted. Clause (j) dealt with non-patenting of plants and animals except micro-organisms. But it excluded seeds or varieties and species and essentially biological processes for production or propagation of plants and animals.[18] The provision under Article 27 Clause 3(b) is reflected in this particular clause. Clause (k) excluded mathematical methods, business methods, computer programmes from getting a patent. Clause (l) excluded the plethora of things which are capable of getting a copyright for like literary, dramatic, artistic works etc. Clause(m) eliminated mere scheme, rule, or method of performing a mental act or playing games from patenting. [19]Presentation of information and topography of integrated circuits were decided to be an ineligible invention under clause (n) and (o) respectively. Traditional knowledge became non-patentable through clause (p).
After this major amendment in 2002, in the year 2005 another amendment was made. Only a minor change was bought in the Subject matter that is an explanation clause was added to Section 3(d) was added for a better clarity and understanding.
Conclusion
Section 3 of the Act delas with what not are inventions and is considered as the subject matter of patentability. Article 27 of the TRIPS Agreement deals with provisions related to patent and gives out the standard as well as the subject matter in it. The current legislation that gives out the subject matter for patentability is result of many amendments to keep up with various international obligations like TRIPS Agreement. The changes so made have reflected in a positive way and have bought perfect clarity to confusions surrounding this area of law. The makers of law have given such a makeover to the legislation so as to have a strong patent system in our country and maximum people can be benefitted from the same. The category of things that are protected either by a different law or through different provisions are excluded by the Patent law.
Author: Akhila Sridharan
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