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Non patentable inventions


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Non-patentable subject matter under Indian Patent Act.

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Non patentable inventions

  1. 1. Amrendra Kumar Ajit (Assit.Professor of Law)National Law University Orissa, Cuttack India-753008 © NLUO2011
  2. 2. Only fulfillment of three prerequisites (N IS U) are not enough for granting the patent to an invention.An invention must not be come under non-patentable criteria .(N+IS+U)+PSM= Patent
  3. 3. . Municipal laws relating to patent provide the list of non-patentable invention..No definite criteria for exclusion..But list may be categorised on three criteria…. (i) matters which are incapable of being the subject of legal monopoly, eg. like an invention contrary to established natural law.
  4. 4. (ii) matters excluded by policy or moralityeg. Invention relating to atomic energy and human cloning.(iii) Matters which are protected by others form of IPR eg. Copyright.
  5. 5. IN EPC + UK IN USAART.52(2),ART.1(2)n(3) - no such list in US CODE 35. - depend upon judicial-discoveries, scientific theories and mathematical methods precedent and specific- aesthetic creations; legislation.- schemes, rules and methods for O’ Reilly vs Moore performing mental acts, playing 56 US (15HOW)6,132(1853) games or doing business, and Held- Patent can’t be granted programs for computers on plant and animal due to… i) it will provide exclusive right ii) unjust enrichment iii) Lockean labour philosophy
  6. 6. - presentations of information. Diamond vs Chakraborty 447 US 303(1980) issue- patent for genetically- Methods for treatment of the human or animal body by engineered bacterium cap- surgery or therapy and able breaking down crude diagnostic methods practised oil. on the human or animal body - patent was granted as human made “manufacture” or “comp- osition” of matter. Anything under the sun made by man is patentable. - Chimera issue
  7. 7.  ART.53 Now excluded matter- inventions the publication or .products of nature exploitation of which would be .laws of nature contrary to "ordre public" or .printed matter morality .atomic weapons (under- plant or animal varieties or the Atomic Energy Act) essentially biological processes for the production of plants or .mental step animals; this provision does not apply to microbiological processes or the products thereof.
  8. 8. Sections 3 and 4 of The Patent Act 1970sec 3(a)- Frivolous inventions or contrary to natural laws. eg. a perpetual motion machine:- as it contravene the laws of physics
  9. 9. b) Primary or intended use or comm ercial exploitation of which could be contrary to Public order or m orality or which causes serious prejudice to human, animal or plant life or health or to the environment . For example, o Gambling machine, device for house-breaking, o Biological warfare material or a device, WMD o Onco- mouse case, embryonic stem cell o Terminator gene technology,
  10. 10. C ) Mere Discovery of a Scientific Principle or Formulation of an Abstract Theory or discovery of any living thing or discovery of non–living substance occurring in natureDiscovery adds to the human knowledge by disclosing something ,not seen before, whereas,Invention adds to human knowledge by suggesting an act to do which results in a new product or new process
  11. 11. e.g. Archimedes Principle, Superconducting Phenomenon etc as such – not patentable , However, An apparatus/method for technological application may be patentableA property of certain material to withstand mechanical shock is not patentable, but A claim to a railway-sleeper made of that material may be patentable
  12. 12. Discovery of a substance, freely occurring in nature is not patentable However,if that substance is first to be isolated from its surrounding and a process for obtaining it is developed , the process may be patentableDiscovery of m icro-organism Discovery of natural , gas or a m ineral, not patentable
  13. 13. 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.
  14. 14.  3 d : ExplanationFor the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixture of isomers, complexes, combinations, and other derivatives of known substances shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy. eg. New use of Aspirin in heart ailments, Mere new uses of Neem
  15. 15. e) A substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substanceFor example: Not patentable- 1) Paracetamol (Antipyretic) +Brufen (analgesic) + == A drug (antipyretic & analgesic)
  16. 16. 2) A mixture of sugar and some colorants in water toproduce a soft drink is mere admixtureBut, a mixture resulting into synergistic properties of mixture of ingredients however, may be patentable e.g Soap, Detergents,lubricantsssss etc
  17. 17. f) The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way, eg. Workshop improvement, combination of known integers Timer +( watch +TV+ street light)= No Patentg) Ommited in 2002 (a method or process of testing applicable during the process of manufacture )h) A method of agriculture or horticulture;
  18. 18. i) Any process for medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or a similar treatment of animals to render them free of disease or to increase their economic value or that of their products
  19. 19. For example:o Removal of cancer tumoro Removal of dental plaque and carries,o Surgical processes, any process relating to therapy,o Method of vaccination,o Method of therapy carried out on materials temporarily removed from the body for example, blood transfusion
  20. 20. However , Method performed on tissues or fluids permanently removed from the body Surgical,therapeutic or diagnostic Apparatus or instrument are not excluded from patentability
  21. 21. j) Plants & animals in whole or any part thereof other than micro- organisms, but including seeds, varieties and species and essentially biological process for production or propagation of plants & animals
  22. 22. For example,Clones and new varieties of plants: Not patentable Microorganisms, per se: Not patentable, If human intervention in the process plays a significant role- not an essentially biological processA process for the production of plants or animals if it consists entirely of natural phenomena such as crossing or selection”- essentially biological
  23. 23. k) A mathematical or business method or computer programe per se or alogrithms;, an algorithm is a type of effective method(related to mathematics, computing, linguistics, and related disciplines) in which a definite list of well-defined instructions for completing a task, when given an initial state, will proceed through a well-defined series of successive states, eventually terminating in an end-state
  24. 24.  A literary , dramatic , musical or artistic work or any other aesthetic creation,m) A mere scheme or rule or method of performing mental act or method of playing game, eg. Rules of cricket (20-20 rule), football etc.
  25. 25. n) Presentation of informationO) topography of integrated circuits,
  26. 26. p) An invention which, in effect, is the Traditional Knowledge or an aggregation or duplication of known properties of traditionally known component or components + =
  27. 27. SEC.4 – Invention relating to atomic energy can’t be patented.Invention relating to atomic has been described in sec.20(1) of the Atomic Energy Act,1962.
  28. 28. Study Material- Intellectual Property Law (Lionel Bently and Brad Sherman)- Chapter 17,18,19-- Pg. 362-456.Intellectual Property (David Brainbridge) Pg.– 338-375
  29. 29. THANK u 2 ALL