Patentability criteria under the Indian Patents Act, 1970 determine whether an invention is eligible for patent protection in India. Not every new product, technology, process or idea qualifies for a patent. To obtain a patent, an invention must satisfy specific statutory requirements relating to novelty, inventive step and industrial applicability, while also avoiding the exclusions prescribed under the Patents Act.
The Patents Act, 1970, along with the Patents Rules, 2003, provides the legal framework governing patent protection in India. Understanding these requirements is essential for inventors, startups, businesses, researchers and intellectual property professionals seeking to secure and enforce patent rights.
This article explains the patentability criteria in India, including Section 2(1)(j), novelty, inventive step, industrial applicability, Section 3 exclusions, Section 3(d), Section 3(k), Section 3(i), Section 4 and important judicial principles.
What Is a Patent?
A patent is a statutory intellectual property right granted by the State to an inventor in respect of an invention. In return for disclosing the invention to the public, the patent holder receives exclusive rights to prevent others from commercially exploiting the patented invention for the prescribed period, subject to the Patents Act.
In India, patents are primarily governed by the Patents Act, 1970 and the Patents Rules, 2003, as amended from time to time.
The patent system seeks to encourage technological innovation while ensuring that inventions are disclosed for the benefit of society.
What Are the Patentability Criteria in India?
The fundamental definition of an “invention” is contained in Section 2(1)(j) of the Patents Act, 1970.
Under the Act, an invention means:
“a new product or process involving an inventive step and capable of industrial application.”
This definition establishes three core requirements:
- Novelty
- Inventive Step
- Industrial Applicability
These requirements are cumulative. Therefore, satisfying only one or two of them is not sufficient. An invention must satisfy all three requirements and must also fall outside the statutory exclusions under Sections 3 and 4.
1. Novelty
Novelty is one of the most fundamental requirements for obtaining a patent in India.
An invention is considered novel when it has not already been disclosed to the public through prior art before the relevant date.
Section 2(1)(l) defines “new invention” as an invention or technology that has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of the patent application with complete specification.
What Can Destroy Novelty?
Novelty may be affected by prior disclosure through:
- Earlier patent publications;
- Scientific or technical publications;
- Public demonstrations;
- Public use;
- Commercial exploitation;
- Online publications;
- Product launches;
- Conferences or exhibitions; and
- Other publicly available information.
Therefore, inventors should generally conduct a comprehensive prior-art search before publicly disclosing their invention or filing a patent application.
Why Is Prior-Art Search Important?
A prior-art search helps determine whether the proposed invention has already been disclosed.
It can help an applicant:
- Identify potentially relevant prior patents;
- Assess the novelty of the invention;
- Identify differences from existing technology;
- Develop an appropriate claim strategy; and
- Reduce the risk of patent rejection or future invalidity challenges.
2. Inventive Step
The second major patentability requirement is inventive step.
Section 2(1)(ja) defines an inventive step as a feature of an invention that involves technical advance over existing knowledge or has economic significance or both, and that makes the invention not obvious to a person skilled in the art.
In simple terms, an invention should not merely be an obvious modification of something that already exists.
What Does “Not Obvious” Mean?
The invention must demonstrate something more than routine technical knowledge.
The Patent Office may consider:
- The existing state of technology;
- The differences between the invention and prior art;
- The technical problem addressed;
- The technical effect or advantage achieved;
- Common general knowledge of a skilled person; and
- Whether the claimed solution would have been obvious to a person skilled in the relevant field.
Inventive step is often one of the most contested issues during patent examination, opposition and revocation proceedings.
Hindsight Analysis and Inventive Step
A critical principle in determining inventive step is that the assessment should not be based on hindsight.
Once an invention is known, it may appear simple or obvious. However, the question is whether the invention would have been obvious to a person skilled in the art at the relevant date, based on the information then available.
Accordingly, the analysis should avoid reconstructing the invention using knowledge obtained only after the invention was disclosed.
3. Industrial Applicability
The third requirement is industrial applicability.
Section 2(1)(ac) provides that “capable of industrial application” means that the invention is capable of being made or used in an industry.
An invention therefore needs to have a practical application.
Industrial applicability is generally straightforward for inventions involving established manufacturing or industrial processes. However, questions may arise in fields such as:
- Biotechnology;
- Pharmaceuticals;
- Chemistry;
- Medical technology; and
- Emerging technologies.
Where the claimed invention lacks a credible practical application or utility, it may face objections concerning industrial applicability.
The Three Patentability Criteria at a Glance
| Patentability Requirement | Key Question |
|---|---|
| Novelty | Is the invention new and not already disclosed in prior art? |
| Inventive Step | Is the invention non-obvious to a person skilled in the art? |
| Industrial Applicability | Can the invention be made or used in an industry? |
An invention generally needs to satisfy all three requirements to qualify as an “invention” under Section 2(1)(j).
Section 3: What Is Not an Invention?
Satisfying novelty, inventive step and industrial applicability is not always enough.
Section 3 of the Patents Act, 1970 identifies categories of subject matter that are not considered inventions for the purposes of the Act.
These exclusions are an important part of the Indian patentability framework.
Some of the most relevant provisions include Sections 3(d), 3(i), and 3(k).
Section 3(d): New Forms and New Uses of Known Substances
Section 3(d) is particularly important in pharmaceutical patent law.
The provision excludes, among other things, the mere discovery of:
- A new form of a known substance that does not result in enhancement of the known efficacy of that substance;
- A new property of a known substance; and
- A new use for a known process, machine or apparatus, subject to the statutory wording and exceptions.
The provision is intended to prevent the grant of patents for certain incremental modifications that do not meet the statutory standard.
Novartis AG v. Union of India and Section 3(d)
Section 3(d) received significant judicial consideration in the landmark case of Novartis AG v. Union of India.
The case concerned Novartis’s patent application relating to the beta-crystalline form of imatinib mesylate, a substance associated with the cancer medicine Glivec.
The Supreme Court examined the meaning and application of Section 3(d), particularly the requirement relating to enhanced therapeutic efficacy.
The judgment remains one of the most important decisions for understanding pharmaceutical patentability in India.
Section 3(k): Software, Algorithms and Business Methods
Section 3(k) excludes certain categories of subject matter from patent protection, including:
- Mathematical methods;
- Business methods;
- Computer programme per se; and
- Algorithms.
This provision is particularly important for the software and technology industry.
However, determining whether a computer-related invention falls within the statutory exclusion requires careful analysis of the claimed subject matter and the applicable Patent Office examination guidelines and judicial developments.
Therefore, merely describing an invention as “software” does not by itself resolve every patentability question. The precise nature and substance of the claimed invention must be examined.
Section 3(i): Medical Treatment Methods
Section 3(i) excludes certain methods of treatment of human beings and animals from patentability.
The provision covers methods relating to:
- Medicinal treatment;
- Surgical treatment;
- Curative treatment;
- Prophylactic treatment;
- Diagnostic treatment;
- Therapeutic treatment; and
- Other treatment of human beings or animals.
This exclusion is particularly relevant to medical, pharmaceutical and biotechnology inventions.
While products such as pharmaceutical compositions, devices and diagnostic technologies may potentially be patentable subject to the Act, a claim directed to a prohibited method of treatment may face an objection under Section 3(i).
Section 4: Inventions Relating to Atomic Energy
In addition to Section 3, Section 4 of the Patents Act, 1970 excludes inventions relating to atomic energy from patentability.
The provision operates in connection with the statutory framework governing atomic energy in India.
Therefore, inventions falling within the scope of Section 4 cannot be patented under the Patents Act.
Patentability Criteria vs. Section 3 Exclusions
It is useful to understand that patentability involves two separate levels of examination.
First Level: Positive Patentability Requirements
The invention must satisfy:
- Novelty;
- Inventive step; and
- Industrial applicability.
Second Level: Statutory Exclusions
The invention must also avoid exclusions under:
- Section 3;
- Section 4; and
- Other applicable provisions of the Patents Act.
Thus, an invention can be technically new and inventive but still be non-patentable because it falls within a statutory exclusion.
Why Prior-Art Search Is Important Before Filing a Patent?
A detailed prior-art search is one of the most important steps in developing a patent strategy.
Before filing an application, an inventor should consider searching:
- Indian patent databases;
- International patent databases;
- Scientific literature;
- Technical journals;
- Product publications;
- Industry databases; and
- Other publicly available technical information.
The purpose is not merely to determine whether an identical invention exists. The search should also help identify prior art that could affect the novelty or inventive step of the proposed claims.
Importance of Patent Claims
Patentability is ultimately assessed in relation to the claimed invention.
A poorly drafted claim may unnecessarily narrow the scope of protection or expose the application to avoidable objections.
A well-drafted patent application should clearly explain:
- The technical problem;
- The proposed solution;
- The technical features;
- The advantages achieved;
- The embodiments of the invention; and
- The relationship between the claims and the disclosure.
Careful claim drafting is therefore essential for obtaining meaningful and defensible patent protection.
Common Reasons for Patent Rejection in India
Patent applications may face objections for various reasons, including:
- Lack of novelty;
- Lack of inventive step;
- Lack of industrial applicability;
- Falling within Section 3 exclusions;
- Falling within Section 4;
- Insufficient disclosure;
- Lack of clarity or definiteness;
- Improper claim drafting;
- Lack of support in the specification; and
- Other procedural or statutory deficiencies.
A patent application should therefore be prepared after considering both substantive patentability and procedural compliance.
Patentability Criteria: A Practical Checklist
Before filing a patent application in India, an inventor should consider the following:
✔ Is the invention new?
Check whether the invention has already been disclosed in prior art.
✔ Does it involve an inventive step?
Determine whether the invention provides a technical advance or economic significance and is not obvious to a person skilled in the art.
✔ Is it industrially applicable?
Ensure that the invention can be made or used in an industry.
✔ Does it fall under Section 3?
Check whether the invention belongs to any statutory exclusion.
✔ Does Section 4 apply?
Determine whether the invention concerns subject matter relating to atomic energy.
✔ Has the invention already been publicly disclosed?
Public disclosure before filing can create significant patentability issues.
✔ Are the claims properly drafted?
Claims should accurately define the scope of the invention and be supported by the specification.
Conclusion
The patentability criteria under the Indian Patents Act, 1970 form the foundation of India’s patent examination system. An invention must satisfy the three fundamental requirements of novelty, inventive step and industrial applicability before patent protection can be granted.
However, satisfying these requirements alone is not sufficient. Applicants must also examine whether the invention falls within any of the statutory exclusions under Sections 3 and 4, particularly in specialised fields such as pharmaceuticals, biotechnology, software and medical technology.
For inventors and businesses, a successful patent strategy therefore begins well before filing the application. A thorough prior-art search, technically detailed specification, carefully drafted claims and proper assessment of statutory exclusions can significantly improve the prospects of obtaining meaningful patent protection.
Understanding these patentability requirements is essential for anyone seeking to file, prosecute, enforce or defend a patent in India.