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Invention (Section 2(1)(j)): a new product or process involving an inventive step and capable of industrial application.
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New (2(1)(l)): not anticipated by prior publication, prior use or otherwise, anywhere in the world (absolute novelty) before the date of filing/priority.
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Inventive step (2(1)(ja)): a feature involving technical advance compared to existing knowledge, or having economic significance or both, and making the invention not obvious to a person skilled in the art ("PSITA").
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Capable of industrial application (2(1)(ac)): the invention is capable of being made or used in an industry.
Subject matter excluded: Section 3 ("What are not inventions"). This is the single most tested provision in patent law. Learn all of 3(a)–(p):
| Clause |
Not an invention |
| 3(a) |
Frivolous inventions or claims contrary to well-established natural laws |
| 3(b) |
Inventions whose commercial exploitation would be contrary to public order or morality, or cause serious prejudice to human, animal, plant life or health, or the environment |
| 3(c) |
Discovery of a scientific principle, formulation of an abstract theory, or discovery of any living thing or non-living substance occurring in nature |
| 3(d) |
Mere discovery of a new form of a known substance that does not result in enhancement of known efficacy; mere discovery of a new property or new use of a known substance; mere use of a known process unless it results in a new product or employs at least one new reactant. Salts, esters, polymorphs, isomers, combinations are the same substance unless they differ significantly in properties with regard to efficacy. |
| 3(e) |
Mere admixture resulting only in the aggregation of properties of components (e.g. a combination of known drugs with no synergistic effect) |
| 3(f) |
Mere arrangement, rearrangement or duplication of known devices functioning independently |
| 3(g) |
(Omitted by the 2002 Amendment) |
| 3(h) |
Method of agriculture or horticulture |
| 3(i) |
Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or of animals to render them free of disease or to increase their economic value |
| 3(j) |
Plants and animals in whole or in any part, including seeds, varieties and species, and essentially biological processes for production or propagation of plants and animals (micro-organisms are patentable) |
| 3(k) |
Mathematical or business method or a computer programme per se or algorithms |
| 3(l) |
Literary, dramatic, musical or artistic work or any other aesthetic creation (including cinematographic works and television productions) |
| 3(m) |
A mere scheme, rule or method of performing a mental act, or a method of playing a game |
| 3(n) |
Presentation of information |
| 3(o) |
Topography of integrated circuits |
| 3(p) |
An invention which, in effect, is traditional knowledge, or is an aggregation or duplication of known properties of traditionally known component(s) |
Section 4: inventions relating to atomic energy (Atomic Energy Act 1962, Section 20) are not patentable.
Section 3(d) and Novartis. Novartis AG v. Union of India (SC, 1 April 2013) is the leading case. Novartis sought a patent on the beta crystalline form of imatinib mesylate (Glivec) for cancer. The Supreme Court held that the beta crystalline form was a new form of a known substance (imatinib free base, disclosed in the Zimmermann patent) and that the claimed increase in bioavailability did not show enhanced therapeutic efficacy; the explanation to Section 3(d) requires that "efficacy" means therapeutic efficacy for medicines. The Court read 3(d) as a standard setting a higher threshold for incremental innovations to prevent evergreening (extending monopoly by trivial changes), and held it consistent with TRIPS and Article 21. It also said that Section 3(d) is not a limit on patentability of true innovations.
Computer-related inventions (CRI). Section 3(k) excludes software per se. CRI Guidelines 2017 (revised) allow patents where the claim shows a technical effect or technical contribution and is not merely software. Ferid Allani v. Union of India (Delhi HC 2019) held that software with technical effect is patentable; Microsoft Technology Licensing LLC v. Assistant Controller of Patents (Delhi HC 2023) applied the same approach.
Biotechnology. Dimminaco AG v. Controller of Patents (Calcutta HC 2002): a vaccine containing a live virus was patentable as the claimed process produced a manufacture, rejecting the Controller's "living organism" refusal. Micro-organisms are patentable (Diamond v. Chakrabarty, US 1980, is the global reference; the Budapest Treaty deposit is required where the invention uses a micro-organism not publicly available). Plant varieties are under the PPVFR Act 2001.