What can and cannot be patented in India
Not every clever idea is patentable in India. The Act asks three questions — is it new, is it non-obvious, can it be made or used — and then applies a separate filter: is the subject matter excluded by Section 3 or Section 4 altogether?
Section 3 is the most cited provision in Indian patent prosecution. It is not a quality test; it is a subject-matter test. An invention can be brilliant, commercially valuable and completely new and still be refused because it falls into a listed category.
The three positive requirements come from the definition of an invention read with the examination provisions: novelty, inventive step and capability of industrial application. Novelty is absolute and worldwide, which is why a founder who demos a product at a trade fair before filing has usually destroyed their own case.
Software, business methods, algorithms, mathematical methods, methods of agriculture, methods of treatment, mere admixtures and new forms of known substances all have their own treatment. The right question is rarely 'is software patentable' but 'what technical effect does this claim produce, and is that effect what the claim is really about'.
The provisions that govern this
Act sections and Rules are listed separately, as they always are on this site. Open a provision for its own explanation, example and deadlines.
- 2Definitions and interpretation
- 3What are not inventions
- 4Inventions relating to atomic energy not patentable
- 5Inventions where only methods or processes of manufacture patentable
- 10Contents of specifications
- 11Priority dates of claims of a complete specification
- 13Search for anticipation by previous publication and by prior claim
- 18Powers of Controller in cases of anticipation
- 27Refusal of patent without opposition
- 29Anticipation by previous publication
- 30Anticipation by previous communication to Government
- 31Anticipation by public display, etc.
- 32Anticipation by public working
- 33Anticipation by use and publication after provisional specification
- 34No anticipation if circumstances are only as described in sections 29, 30, 31 and 32
- 52Grant of patent to true and first inventor where it has been obtained by another in fraud of him
- 56Validity of patents of addition
- 64Revocation of patents
- 65Revocation of patent or amendment of complete specification on directions from Government in cases relating to atomic energy
- 107Defences, etc., in suits for infringement
Not sure whether your invention clears Section 3?
MYCrave Consultancy & Services handles this work every day — 22,000+ IP applications filed for 11,000+ clients across India.