Patent law isn't a free-for-all. Not every idea, no matter how clever, qualifies for protection. At its core, the law draws a firm line between what belongs to the realm of private ownership and what remains in the public domain. That line is defined by what the law calls "patentable subject matter."
This article breaks down what types of inventions are eligible for a patent, what types aren't, and where the legal debates still rage. Whether you're advising a client or considering filing a patent yourself, it helps to know where the law stands—and where it doesn't.
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What Counts as Patentable Subject Matter Under Indian Law
India's patent regime, governed by the Patents Act, 1970 (as amended), begins with a deceptively broad definition. Section 2(1)(j) defines an "invention" as a new product or process involving an inventive step and capable of industrial application. So far, so good.
But Section 3 of the Act swiftly narrows the scope, listing out what cannot be considered inventions. This list is where most of the heavy lifting happens—it is here that courts and patent examiners decide what gets through the door and what doesn't.
Let's look closer at some of these exclusions.
Ideas, Algorithms, and Abstract Theories
Section 3(c) excludes "the mere discovery of a scientific principle or the formulation of an abstract theory." That means you cannot patent a mathematical equation, a law of nature, or a theoretical framework—even if it's novel and groundbreaking. Ideas alone don't count. The law requires application.
Similarly, Section 3(k) blocks "a mathematical or business method or a computer program per se or algorithms." This provision has been the source of intense litigation and uncertainty, particularly around software patents. The phrase "per se" becomes critical. If the software is embedded in a larger system or achieves a technical effect, it may still be patentable. But standalone code or an abstract algorithm? Not likely.
The Delhi High Court's ruling in Ferid Allani v. Union of India (2019) opened the door slightly by holding that a software invention demonstrating "technical effect or technical contribution" may be considered patentable. However, the bar remains high. Simply automating a known method with code won't suffice.
Natural Substances and Living Things: What You Can't Own
Sections 3(i) and 3(j) bar patents on methods of medical treatment and essentially biological processes. These provisions reflect a broader policy decision: some things are too fundamental, too essential to life, to be owned.
Take Section 3(j), which excludes "plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties, and species and essentially biological processes for production or propagation of plants and animals." What does that mean in practice? You can't patent a new plant variety or a cow breed. But if you've developed a genetically modified microorganism that meets the criteria of novelty, inventive step, and industrial application—think Chakrabarty-style microorganisms—there's a path forward.
Medical inventions run into a different wall. Section 3(i) prohibits patents on "any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or animals." Devices may be patentable, but methods of treatment are not. This reflects the same public policy rationale: access to life-saving treatments shouldn't be fettered by monopoly rights.
There's a tension here. Innovation in healthcare is valuable, but the law draws a clear boundary: protect the tool, not the treatment itself.
Avoid the Illusion of Invention
Section 3(e) disallows "a substance obtained by mere admixture resulting only in the aggregation of the properties of the components." In short, if you just mix two known things together and each behaves exactly as it did before, there's no invention. You haven't created something new—you've just stirred the pot.
This provision often trips up those filing pharmaceutical combination patents or chemical compositions. Unless the admixture produces a synergistic effect—something measurably beyond the sum of its parts—it's not patentable.
Similarly, Section 3(f) excludes "the mere arrangement or re-arrangement or duplication of known devices each functioning independently." If you attach a flashlight to a helmet, and both the flashlight and helmet function as they always have, that's not invention. To qualify, the combination must produce a new function or a new mode of operation.
Cleverness is not invention. Courts and patent examiners are looking for something more than aggregation or convenience. They want a leap, not a shuffle.
Traditional Knowledge, Frivolity, and Morality
Section 3(p) bars the patenting of "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components." This provision was introduced to address what's often called biopiracy—attempts to privatize long-established community knowledge.
If the claimed invention is already part of the Traditional Knowledge Digital Library (TKDL), it's a non-starter. No matter how artfully repackaged, traditional remedies, plants, or techniques that have been in documented public use are off-limits.
Then comes Section 3(b): no patent shall be granted for an invention "the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment." It's broad, and its interpretation remains fact-specific. Courts have invoked this clause to reject inventions linked to tobacco products, hazardous chemicals, or weaponized technologies.
These provisions may not frequently arise in the day-to-day patent docket, but when they do, they carry real weight.
Emerging Frontiers
Patentable subject matter isn't static. Technology keeps moving, and the law often plays catch-up. Artificial intelligence, biotechnology, blockchain-based systems, and quantum computing raise difficult questions that the Patents Act wasn't built to answer.
Can AI-generated inventions be patented? Indian law currently requires a human inventor. But what if the human merely prompts an algorithm that does the heavy lifting? The statute is silent, and so far, the IPO (Indian Patent Office) hasn't taken a definitive stance.
In biotech, the lines around genetically modified organisms and gene-editing techniques like CRISPR are still being drawn. The bar on patenting living things under Section 3(j) clashes with real-world advances in synthetic biology, making outcomes unpredictable.
And in software, despite decisions like Ferid Allani, there remains no settled jurisprudence on what counts as a "technical effect." That ambiguity means two similar applications could meet very different fates depending on the examiner—or the court.
Conclusion
Patent law draws deliberate boundaries. Not every bright idea qualifies. Some are excluded for policy reasons. Others fail because they aren't enough of a leap. And some simply belong to the commons.
Understanding patentable subject matter isn't just a matter of compliance—it's strategy. It helps avoid wasted time, rejected filings, and misguided expectations. And in a legal landscape where both technology and jurisprudence are in motion, it keeps you grounded in what the law actually protects.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
