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Not every invention can be patented in India. The Patents Act, 1970 has specific criteria for patentability and an extensive list of exclusions. Understanding what can and cannot be patented is the first step in any patent strategy.
Three Criteria for Patentability
1. Novelty (Section 2(1)(j))
The invention must be new — not previously disclosed anywhere in the world before the priority date.
What Counts as Prior Disclosure?
- Any patent (granted or pending)
- Any publication (papers, books, articles)
- Public use anywhere
- Public knowledge anywhere
- Sale or offer for sale
- Conferences, presentations
- Online publication
⚠️ Important: Even your OWN public disclosure (a paper, a launch event, etc.) can destroy patentability if you haven't filed before that disclosure. Always file BEFORE any public disclosure.
2. Inventive Step (Section 2(1)(ja))
The invention must not be obvious to a person skilled in the relevant field, considering existing prior art.
What Constitutes Inventive Step?
- Technical advance compared to existing knowledge
- Economic significance
- Both technical advance AND economic significance
- Not obvious combinations of known things
3. Industrial Applicability (Section 2(1)(ac))
The invention must be capable of being made or used in industry — practical application required.
Excluded: Theoretical, abstract, or non-practical inventions.
What Can Be Patented in India
Products
- New machines and devices
- New chemical compositions
- New tools and equipment
- New consumer products
- New medical devices
- New electronic components
Processes
- New manufacturing processes
- New chemical processes
- New methods of treating materials
- New industrial methods
Improvements
- New improvements on existing products
- Enhanced manufacturing methods
- Better designs of known products
Compositions of Matter
- New chemical compounds
- New materials
- New alloys
- New formulations
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Start Patent Process →What CANNOT Be Patented (Section 3)
Section 3(a) — Frivolous Inventions
Trivial inventions or those contrary to natural laws (like perpetual motion machines).
Section 3(b) — Contrary to Public Order
Inventions whose use would be contrary to public order, morality, or harmful to environment, human/animal/plant life.
Section 3(c) — Mere Discoveries
Mere discovery of scientific principles, abstract theories, or naturally occurring substances.
Section 3(d) — Known Substance Modifications
Mere new use of known substance, or new property/use of known substance — unless significantly enhanced efficacy demonstrated. Critical for pharma sector.
Section 3(e) — Mere Admixtures
Mere mixtures resulting only in aggregation of properties (no synergy).
Section 3(f) — Mere Arrangements
Mere arrangement or rearrangement of known devices each functioning independently.
Section 3(h) — Methods of Agriculture/Horticulture
Cannot patent methods of agriculture or horticulture.
Section 3(i) — Medical Treatment Methods
Methods of medical, surgical, curative, prophylactic, diagnostic, therapeutic treatment of humans/animals.
Section 3(j) — Plants and Animals
Plants, animals (other than micro-organisms), seeds, biological processes for production of plants/animals.
Section 3(k) — Mathematical/Business Methods/Computer Programs
Mathematical methods, business methods, computer programs (per se), algorithms.
Section 3(l) — Literary, Artistic Works
Literary, dramatic, musical, artistic works, cinematographic films, TV programs.
Section 3(m) — Schemes for Mental Acts/Games
Schemes for performing mental acts, playing games, methods of teaching.
Section 3(n) — Presentation of Information
Mere presentation of information.
Section 3(o) — Topography of Integrated Circuits
Covered separately under Semiconductor Integrated Circuits Layout-Design Act.
Section 3(p) — Traditional Knowledge
Inventions which are aggregation of known properties of traditionally known components.
Software Patents in India — The Tricky Area
Software patents are particularly complex in India:
Pure Software — NOT Patentable
- Algorithms
- Software per se
- Computer programs alone
Software + Hardware — POSSIBLY Patentable
If software combined with hardware produces technical effect:
- Solving technical problem
- Producing physical result
- Improving hardware function
- Industrial application
Examples
- ❌ E-commerce checkout method (business method)
- ❌ Pure encryption algorithm
- ✅ Hardware-software system improving CPU efficiency
- ✅ Method of compressing video using new hardware
- ✅ IoT device with novel sensor processing
Software Patent Reality: India is much stricter than US/Europe. Many "software patents" granted in US are not patentable in India. Tech companies often rely on copyright for software protection.
Pharmaceutical Patents — Section 3(d)
India has unique pharma patent rules to prevent "evergreening":
Cannot Patent
- Mere new form of known substance (without enhanced efficacy)
- Mere new use of known substance
- Mere new property of known substance
Can Patent
- Genuinely new compounds
- Modifications with significantly enhanced efficacy
- Truly new processes for known substances
- New combinations with synergistic effect
Famous example: Novartis Glivec case — Supreme Court denied patent for known compound's modified form, citing Section 3(d).
Practical Patentability Assessment
Ask these questions about your invention:
- Is it new globally? (Novelty)
- Would a skilled person consider it obvious? (Inventive step)
- Can it be used in industry? (Industrial applicability)
- Does it fall under Section 3 exclusions?
- Does it have technical character? (For software inventions)
- Has it been publicly disclosed? (Risk of losing novelty)
Conclusion
Patentability in India is determined by both positive criteria (novelty, inventive step, industrial applicability) and negative exclusions (Section 3). Many "inventions" don't qualify due to exclusions. Before investing in patent application, conduct thorough patentability analysis with a qualified patent attorney.