Patent Agent Exam: Which are the Inventions that are not Patentable?

Transcript

now the inventions that are not patentable are mentioned in Section three and four now these are the statutory exceptions the invention the patentability under Section 2 1 J we were referring to the tests that are that have to be there what we call the positive requirements if novelty is their invention has granted a patent if inventive step is there the invention is granted a patent if utility is there invention is granted a pattern these are the positive requirements now section 3 and 4 are the negative requirements negative requirements in the sense that these things should not be there if these things are there or if the invention falls into any of these categories it will not be granted a patent now but there as I said these exceptions are applied first because if for something to be a patentable subject matter it has to first go through the exceptions now there is no need to classify these exceptions because the exceptions are the Indian statute is free to have policy based exceptions you can just as a policy we can just decide and say that we will not grant software for sorry patterns for software it's a policy exception now we cannot go and see whether these exceptions are right wrong in some countries may granters others may not grant it whatever be it for the purpose of this exam these exceptions can be understood as something created by a statute these exceptions would broadly fall into two categories if you see section 3 and section 4 there are two categories of exceptions one are the absolute exception hexa volute exception in whatever be the case you cannot get over these exceptions you are barred from patenting an invention which falls within that exception section 4 which deals with inventions relating to atomic energy is a classic example no matter how good your invention is whether it satisfies every condition if it pertains to atomic energy you will not be granted a pattern the statute is created that way you can't get over that exception whereas there are some exceptions which are limited or conditional conditional in the sense that the exception is there but you can get over that exception for instance if you see section 3e it talks about mixtures of substances normally if you mix two substances and the substances retain their individual properties like like you you take two painkillers having different actions like paracetamol and roofin you combine them and come up with a new drug now the drug it could have been consumed separately or even if you have them together it does not do anything but they have their own two individual actions it has the individual action of paracetamol and grooving it's just the normal action but there you for the sake of convenience know it's in one pain now this is what section 3e says if you combine material or if you combine substances you make them into a mixture and they retain their individual properties though in the mixture then they are just combination of known substances you cannot get a pattern for it but you could get over the exception in Section 3 by saying or by demonstrating when I combine these two things I got an effect which was greater than the combination of its parts what we call a synergistic effect I mean people in the field will know what we mean we when we mean synergy we mean when things come together in an unexpected way now synergy to put it mathematically I should not be quoted on this synergy mathematically is where we say two plus two makes five it's something more than fourth mean two and 2uv no makes four but when you put them together it makes five that is called synergistic effect so you combine materials and you get an unexpected result which is not the sum of its individual properties you get something more and in in in pharmaceutical chemistry we constantly see this synergy happens two things would have had independent effect but then they come together in a form they help to either have extended a half-life of that thing or better absorption some synergy happens so so synergistic effect is one way you can get over the exception in section 3 e so understand the exceptions in three and four what we call the statutory exceptions as absolute exceptions like atomic energy and some of them are conditional exceptions you could get over the exception by demonstrating synergy section 3 D is another example 3 D normally bars new forms of known substances if you are using a new form of a known substance you will not be granted a patent but if you can demonstrate enhanced efficacy you will be granted a patent again an example of a conditional exception now section 3 deals with an exhaustive list and probably it's the longest list in any statute in any patent statute as far as I have heard it's the longest list of exceptions it begins with exceptions relating to frivolous inventions and inventions that are contrary to natural laws now perpetual-motion many of you will know that perpetual motion is not possible you cannot create a mission with a perpetual motion because it violates the laws of thermodynamics we know that physics has taught us that you cannot have perpetual motion without entropy settling in and we cannot have something running without losing out on energy so perpetual motion as we have understood it is not possible for this reason if somebody comes up with an invention and claims that that his invention or his device is capable of perpetual motion Patent Office throughout the world will ask him to bring a mini model and they say bring the model and work it to work it for us we will grant you the pattern so that's one easy way in which patterned offices have got over missions involving perpetual motion they will just say bring a minion immortal show us it can run on its own forever so that's not possible so inventions that are contrary to natural laws and inventions that are frivolous in nature just you know for time-pass without any any commercial or using any kind of significance then you will find that the path they come under a frivolous invention or an invention that is contrary to natural laws then you have inventions that are contrary to public order or morality now public order or morality is a long it's a long list and in what could amount to Conte what could be contrary to our morality may not be contrary to European or American varieties but this is being used in the scientific area now one case involving Howard on Como's this was a genetically engineered mouse which was susceptible to cancer and this mouse could be used for testing cancer drugs this was granted and patent in u.s. there is a u.s. granted patent on the on commerce whereas Europe rejected it using the public order and or morality clause so there are some in India we don't grant gene patents we don't grin patterns for animals and animals we don't grant patterns for them some countries may grant that so public order or morality is something which is tied to try to try to especially where ethical issues such as cloning comes in the public order or morality exception is used discovery not an invention I said a discovery of a scientific principle formulation of an abstract theory coming up with a new equation or chemical equation to solve something all these things are still you are still in the abstract you have not brought your invention to the level of a product or a process now if you use in scientific principle and come up with the product yes that product is patentable no doubt about it but mere theory mere principle mere equation these things are not seen as patentable for this simple thing it does not satisfy utility it does not have a it is not equations abstract theories are not capable of commercial industrial application keep that in mind when you say industrial application we are actually referring to something resulting in a mass produced process or a product inventions pertaining to arrangement now I am NOT going through the entire list because after C you can see F coming up there is D and E so so we which is quickly running through the main things 3 d & 3 e will come in in the future lecture so there's quite an important topics that we'll be covering that in greater detail 3 F does not allow a person to combine known devices in a known manner so so if you want to add a timer to a mission to which a timer has not been added before it is a mere workshop improvement the devices are known all you did was you just came up with a new arrangement of known devices so for that matter the patent a pattern will not be granted method of testing is now being omitted a method of agriculture or horticulture is not patented cannot be patented a method of treatment of humans and animals again the method of treatment is exempted from the Act 3 I prohibits it plant and animal varieties for plant varieties we have a separate act under intellectual property rights laws it's called the protection of plant variety and farmers rights Act 2001 for plant variety we have a separate act animal varieties are not patentable as I said we can't if we don't give you gene patents in India business method computer Graham and algorithms are not patented they could have a protection for algorithm under the copyrights and computer software can be protected under the copyright sect but it's not the same as a pattern you will get a copyright protection over it and copyright always people can write the code in a different form and make them do the same and function if you see all the process some of the browser's are even have patterns behind them all the browser will do the same function if you press the back button but the code may have been written in a software would have been written in a different form but they all do if you press back button it goes to the earlier page so so so copyright law allows you to do it whereas if patents are granted then anybody who uses the back button to go to the earlier page would be can be technically stopped so that's a reason it's a policy reason to grant swap patents for software now recently we had the the we had guidelines issued by the Patent Office on a pad a soft computer related inventions the guidelines are very clear that only if a patent would be granted for software if it is combined with a novel hardware now normal hardware means the hardware should be new it cannot be something generic so which puts a question mark on most most most software patterns relating to smartphones now you should be doing that a single smartphone that we use by a conservative estimate is expected to have somewhere around 2 lakh 50,000 patterns yes there are so many patterns in a smartphone 2 lakhs 50,000 no no because the Indian law has now come up with this guideline saying that mere software will not be granted a patent unless it is coupled with a normal hardware there is a question mark hanging over many patterns relating to standard essential patterns that's what they call it in the telecom sector a literary dramatic musical artistic word they are all subject matters of copyright so what does the subject matter of copyright is automatically excluded a scheme or a rule or an arrangement of information all these things are excluded topography of integrated circuits which is semiconductor chips are taken care of by a separate act we have a semiconductor chip act for that and that's again a subject matter of a separate separate statute traditional knowledge again cannot be patented traditional knowledge cannot be patented we will see that inventions relating to atomic energy can also not be patented that we had already we have already mentioned that and if a patent is granted that can be removed