Section 3 of the Patents Act, 1970
What are not inventions
Lists the categories of subject matter that are not inventions in India and therefore cannot be patented at all.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this section says, in plain language
Section 3 is the most cited provision in Indian patent prosecution. It filters what the definition of an invention lets through: even something new, inventive and industrially useful is refused if it falls into a listed category. The list reflects policy choices about what the public should stay free to use, and it is raised by examiners, opponents and revocation petitioners alike.
Several entries deal with fundamental knowledge and natural things. Frivolous claims and anything contrary to well established natural laws are excluded, which is why perpetual motion machines are refused. Inventions whose primary or intended use would be contrary to public order or morality, or would seriously prejudice human, animal or plant life or health or the environment, are excluded. So is the mere discovery of a scientific principle, an abstract theory, or any living or non-living substance occurring in nature.
Another group targets recycled subject matter. A new form of a known substance is excluded unless it enhances the known efficacy of that substance, and the mere discovery of a new property or new use for a known substance is excluded outright. Merely using a known process, machine or apparatus is excluded unless the known process results in a new product or employs at least one new reactant. Mere admixtures that only aggregate the properties of their components, and mere rearrangement or duplication of known devices each working independently, are also outside patenting.
A further group is defined by field. Methods of agriculture and horticulture are excluded. Any process for the medicinal, surgical, curative, prophylactic, diagnostic or therapeutic treatment of humans or animals is excluded, although the medicines and devices used in such treatment are not excluded by this entry. Plants and animals in whole or in part, including seeds, varieties and species and essentially biological processes for their production, are excluded, with micro-organisms carved out. Plant varieties are protected instead under the Protection of Plant Varieties and Farmers' Rights Act, 2001.
The last group is about information and expression. Mathematical methods, business methods, computer programmes as such and algorithms are excluded, and the Patent Office publishes separate guidelines on computer-related inventions. Literary, dramatic, musical and artistic works, cinematographic works and television productions are excluded because copyright covers them. Schemes or methods of performing a mental act or playing a game, mere presentation of information, and topographies of integrated circuits are excluded. So is anything that is in effect traditional knowledge.
Because these categories overlap, one application can attract several objections at once. Overcoming them is a drafting and evidence exercise: showing a concrete technical effect, showing genuine enhancement of efficacy with data, or recasting a claim so that it defines a real product or technical process.
Why this section matters
Every applicant, but especially those in software, pharmaceuticals, biotechnology, food, agriculture and traditional-knowledge based products.
Before drafting, again at the first examination report, and once more if the patent is opposed or challenged after grant.
A statutory bar. Subject matter falling within any listed clause is not an invention, so no patent can validly cover it.
Money is spent on an application that cannot be granted, or a granted patent is later revoked on the same ground.
How it works in practice
A new salt of an old medicine
Ananya Rao's company, Sarvin Life Sciences in Hyderabad, develops a new crystalline salt of a medicine that has been on the market for years. The salt is stable, easier to store in Indian humidity, and genuinely new in the literature. The team files a patent application on the salt form. The first examination report raises Section 3(d): a new form of a known substance is not an invention unless it results in an enhancement of the known efficacy of that substance. Better shelf life and easier handling are useful, but the objection asks about efficacy of the medicine itself. Ananya's team runs comparative studies and finds the new salt gives no better therapeutic effect than the existing form. Rather than fight a losing point, they redirect. They file a fresh application on the specific manufacturing process they invented to make the salt at scale, which is a process claim assessed on its own merits, and they keep the formulation data as confidential know-how.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- Section 3 applies even to inventions that are new, inventive and industrially useful.
- A new form of a known substance needs proof of enhanced known efficacy, not merely improved handling or stability.
- Methods of treating humans or animals are excluded, but the medicines and devices used in treatment are not excluded by that clause.
- Computer programmes as such, business methods, mathematical methods and algorithms are excluded; a claimed technical effect is what is argued about.
- Plants and animals are excluded but micro-organisms are not; plant varieties are protected under a separate 2001 Act.
- Subject matter that is in effect traditional knowledge cannot be patented.
- The same application can attract more than one clause of Section 3 at the same time.
Common mistakes and misunderstandings
- Assuming that being new is enough. Novelty does not rescue subject matter that Section 3 declares is not an invention.
- Treating any improvement as enhanced efficacy under Section 3(d). The comparison asked for is with the known substance and its known efficacy, supported by data.
- Thinking software can never be patented in India. What is excluded is a computer programme as such; claims showing a genuine technical effect are assessed on their facts.
- Believing a Section 3 objection can be answered by argument alone. Comparative data and careful claim amendment usually do the real work.
- Assuming a granted patent is safe from Section 3. It remains a ground for post-grant opposition and revocation.
Connected provisions
A section of the Act states what the law requires. The detail of complying with it, including forms, periods and office procedure, sits in the Patents Rules, 2003. The Rules are a separate instrument and change far more often, so they are shown alongside rather than folded into the section.
Forms, deadlines and fees
Any official fee connected with this provision is fixed by the First Schedule to the Patents Rules, not by the provision itself. The amount depends on who the applicant is and on whether the filing is made online or on paper, so no figures are reproduced here. How Indian patent fees work.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2005The Patents (Amendment) Act, 2005The clause on known substances was replaced. A new form of a known substance is not an invention unless it shows enhanced effectiveness, and an explanation treats salts, esters and similar derivatives as the same substance unless their properties differ in effectiveness.
- 2002The Patents (Amendment) Act, 2002The list of things that are not inventions was widened. Exclusions were added or reworded for computer programmes as such, business and mathematical methods, plants and animals other than micro-organisms, aesthetic creations, mental acts, presentation of information, layouts of integrated circuits and traditional knowledge.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
Novartis AG v. Union of India & Others
(2013) 6 SCC 1; AIR 2013 SC 1311 (Civil Appeal Nos. 2706-2716 of 2013) · Judgment source ↗
Question before the courtWhether a beta crystalline form of a known molecule could be patented in India despite the bar on new forms of known substances.
HeldThe Court dismissed the appeal. It read section 3(d) as a second and stricter filter that applies after the usual tests of novelty and inventive step have been met. For a new form of a known substance, the applicant must show a real improvement in therapeutic efficacy over the known substance itself. Better flow properties, stability or solubility were held not to be enough on their own in the case of a medicine. On the facts, the claimed form was a new form of a known substance whose efficacy had not been shown to improve.
Ferid Allani v. Union of India & Others
W.P.(C) 7/2014 (Delhi High Court, judgment dated 12 December 2019)
Question before the courtWhether a method and device claim that operates through a computer program is barred outright by the exclusion for computer programmes.
HeldThe Court set aside the refusal and sent the application back for fresh consideration. It held that the words computer programme per se were chosen deliberately, so the exclusion does not reach every invention that happens to use software. Where the claimed subject matter produces a technical effect, or makes a technical contribution, it is not excluded merely because a computer carries out the steps. The Controller was directed to examine the application again on that footing instead of rejecting it as software.
Monsanto Technology LLC & Others v. Nuziveedu Seeds Ltd. & Others
Civil Appeal Nos. 4616-4617 of 2018 (Supreme Court of India, judgment dated 8 January 2019) · Judgment source ↗
Question before the courtWhether an appellate court could decide at the interim stage that a biotechnology patent was excluded from patentability and revoke it.
HeldThe Court set aside the appellate order and restored the trial judge's interim arrangement, sending the suit back for trial. It held that a challenge of this kind rests on technical material and expert evidence, so it cannot be resolved summarily while an injunction application is being argued. The appellate court should have limited itself to whether the interim order was sound. All questions of fact and law about the patent, including the objection based on the exclusion for plants and biological processes, were expressly left open.
F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd.
2015 SCC OnLine Del 13619; MIPR 2016 (1) 1 (RFA(OS) 92/2012 and RFA(OS) 103/2012)
Question before the courtWhether a generic company's polymorph product infringed a patent on a cancer compound, and whether that patent was invalid.
HeldThe Division Bench held the patent valid and infringed. It rejected the attacks based on obviousness, insufficient disclosure and the bar on new forms, reasoning that the new form objection was directed at the defendant's own later form rather than at the patented compound. Infringement was decided by comparing the defendant's product with the claims, not with the patentee's marketed product. Because the patent was close to the end of its term the Court declined a permanent injunction and instead directed an inquiry into damages or accounts.
AstraZeneca AB & Anr. v. Intas Pharmaceuticals Ltd. & Others
FAO(OS)(COMM) 139/2020 and connected appeals (Delhi High Court, judgment dated 20 July 2021)
Question before the courtWhether a patentee holding both an earlier genus patent and a later species patent over the same molecule could obtain an interim injunction against generic makers.
HeldThe Division Bench refused interim relief and dismissed the appeals. It reasoned that a patentee cannot treat a molecule as covered and disclosed by an earlier broad claim for one purpose while presenting the later patent as a separate invention for another. If the compound already fell within the earlier genus, the later claim raised a serious question about whether a further inventive step existed. With validity credibly in doubt and cheaper alternatives already on the market, the balance was against restraining the generic makers.
Citation details are being confirmed against an official report before this summary is treated as verified.
Case notes are written in our own words from the judgment and are published only after legal review. They are not advice and not a prediction about any other matter. All case notes.
Questions people ask about Section 3
What cannot be patented in India under Section 3?
Section 3 lists categories that are not inventions at all. They include frivolous claims and things contrary to natural laws, inventions against public order or morality or seriously harmful to life, health or the environment, mere discoveries of scientific principles or natural substances, new forms of known substances without enhanced efficacy, mere admixtures, mere rearrangements of known devices, agricultural and horticultural methods, methods of medical treatment, plants and animals other than micro-organisms, mathematical and business methods, computer programmes as such, artistic and literary works, mental acts and games, presentation of information, integrated circuit topographies, and traditional knowledge.
Can software be patented in India?
A computer programme as such is excluded, but that phrase is doing careful work. Indian practice, guided by the Patent Office guidelines on computer-related inventions and by High Court decisions, looks for a technical effect or technical contribution beyond the ordinary running of a program on a general purpose computer. Claims tied to a real technical improvement, such as better hardware performance, more secure data handling or improved control of a physical process, are assessed on their merits. Claims that only automate a business method or express an algorithm are refused.
What does enhanced efficacy mean under Section 3(d)?
Section 3(d) treats a new form of a known substance as not an invention unless it results in an enhancement of the known efficacy of that substance. In pharmaceutical cases Indian courts have read efficacy as therapeutic efficacy, meaning the new form must actually work better as a medicine. Improvements in stability, solubility, flow properties or shelf life may support the technical story but are generally not enough on their own. Applicants are expected to file comparative experimental data against the known substance.
Are medical treatment methods patentable in India?
No. Any process for the medicinal, surgical, curative, prophylactic, diagnostic or therapeutic treatment of human beings or animals is excluded, and this extends to processes for rendering animals free of disease or increasing their economic value. The exclusion is about the method performed on the body. It does not by itself exclude the drug, the composition, the surgical instrument or the diagnostic device used in carrying out the treatment, which are examined against the ordinary requirements of the Act.
Can traditional knowledge be patented in India?
No. Section 3(p) excludes an invention which in effect is traditional knowledge, or which is an aggregation or duplication of known properties of a traditionally known component or components. India also maintains the Traditional Knowledge Digital Library, which patent offices in several countries consult as prior art. This is why applications based on well-documented traditional uses of Indian plants and preparations are routinely refused both in India and abroad.
Will Section 3 block your invention?
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