"Indian patent Act" The first 3 Articles and ordinances 4 The article defines inventions and discoveries that are not patentable. For inventors and businesses seeking intellectual property protection in India, It is important to understand the scope of patent exclusions. This paper discusses the basis "Indian patent Act" The requirement to be identified as a major type of invention that is not patentable.

It will mainly be mathematical methods, Computer program, Evolutionary medical advances and traditional knowledge are excluded. The relevant case law challenging the meaning and scope of these legislative exclusions was reviewed. On the basis of "Indian patent Act" Balance goal of, This study attempts to clarify the non-patentable objects.

On the one hand, The legislation aims to promote genuine innovation. At the same time, It also seeks to prevent in computing technology, Monopolies and patent abuse in areas such as traditional knowledge and the regulation of small medicines. "Indian patent Act" The first 3 Articles and ordinances 4 The article defines inventions and discoveries that are expressly not patentable. The first 3 The article is defined as "Objects that are not part of the invention" , The first 4 The article is defined as "Does not belong to the patent object in the meaning of this law" . These provisions attempt to identify subjects that are ineligible for a patent, Avoid monopolies in areas that are considered unpatentable by Indian policy objectives.

The first 3 article

The first 3 The following categories are excluded from the scope of patent protection:

· Its primary or intended use or commercial exploitation may be prejudicial to public order or morals, Or to humans, Animal or plant life, Inventions that cause significant damage to health or the environment;

· Simple discovery of new properties or applications of existing materials;

· A simple arrangement of known devices that does not produce a new product or apply at least one new element, Recombine or repeat;

· A substance produced by simple mixing, The result is only the mass of its composition or the aggregation process of the process by which the substance is produced;

· Direct discovery of scientific principles;

· Human or animal surgery, Treatment or treatment procedure. This exclusion does not apply to any gadget or device used in the manner described above;

· All or parts of plants and animals other than microorganisms, Seed included, Varieties and species, And basic life processes used in plant and animal production or reproduction;

· A mathematical or business method distinct from a computer program or algorithm;

· literature, drama, Musical or artistic works, And any other aesthetic activity, Including movies and TV shows;

· Simple strategies for performing mental tasks or playing games, Rule or method;

· Information display.

The first 4 article

"Indian patent Act" The first 4 The article deals with atomic energy inventions. It declared that no discoveries relating to atomic energy could be patented. Its main characteristics are as follows:

· 1962 years "Atomic energy law" The first 20 The Article applies to any invention relating to atomic energy. The first 20 The article regulates the ownership and use rights of inventions in the field of atomic energy;

· On the basis of "Atomic energy law" The first 20 article, The central government owns all atomic inventions, Such inventions are not eligible for private patents;

· "Atomic energy law" Atomic energy is broadly defined as anything involving fissile material, Atomic pile, Nuclear reactors and creation, A method of managing or utilizing atomic energy;

· This field covers any invention that relates to or uses fissile material or atomic energy for industrial or commercial reasons;

· On its terms, Processes using fissile material or atomic energy, equipment, Products or combinations of substances are also not patentable. Its purpose is to ensure that any invention related to atomic energy is freely available to the central government and the public;

· Any invention that defines the concept of atomic energy under the Act is not patentable, The government has ownership of these inventions.

therefore, The first 3 Articles and ordinances 4 Article defines non-conformity "Indian patent Act" The object and technical field of patent protection conditions. This includes abstract concepts, Natural thing, Computer program itself, Intellectual activity, Creative work, Teaching technology, Biological process, Mathematical programs and others do not conform to novelty, Similar objects required for creative steps and industrial applications. however, Indian court decisions and policy recommendations continue to influence the limits of patent eligibility covered by the legislative exclusions.

Exclude mathematical methods and computer programs

On the basis of "Indian patent Act" The first 3 (k) paragraph, Mathematical methods and computer programs themselves are explicitly excluded from patent protection. The above paragraph has been amended, It has also been affected by amendments to the patentability of software-related inventions and court rulings.

2002 Annual amendment

2002 Patent Act (amendment) " The first 3 (k) It was added to the model "Per se" One word, It aims to clarify the patentability requirements of computer programs. before, The Act does not permit the granting of patents for computer programs without any restrictions.

2002 Changes made in the year were added "Per se" One word, Indicates that although computer programs are not eligible for patent protection, But if software inventions exist "Technology application" or "Technological impact" , May qualify for a patent. therefore, The amendment makes technical effectiveness testing the standard for determining whether software is eligible for patent protection.

Ferid．Alani (Ferid Allani) Interpretation of the case

Ferid．Arani v. Patent, General Administration of Designs and Trademarks (Controller

General of Patents & Designs) The case was reviewed and evaluated against No 3 (k) A way of understanding and application. The invention relates to a technique for retrieving data in a database using a Boolean search query.

According to # 3 (k) paragraph, The patent application was deemed ineligible for approval, The reason is that the invention is considered to be a mathematical method implemented on a computer system, There is no evidence of any significant technological progress. According to the award, Relying purely on mathematical formulas or business rules, There is no technological innovation in calculating methods, Not eligible for patent protection under Indian law.

The first 3 (k) It aims to reduce the formation of abstract mathematical techniques and algorithmic monopolies. In spite of this, Software that adopts technical methods and produces technical results will still be eligible for patent protection under the amended regulations.

Rule out evolutionary drug invention

"Indian patent Act" The first 3 (d) The law aims to limit patent applications for evergreen and evolving drug inventions. New versions of existing compounds are patentable only if they significantly improve the effectiveness of known drugs.

The first 3 (d) Purpose of paragraph

2005 years "Indian patent Act" The amendment adds the above clause. The provision prohibits drug companies from extending drug patents by making minor changes and applying for new patents. This kind of "everaging" The method effectively extends the patent life of drugs that have been shown to have no further therapeutic value.

According to # 3 (d) Provision of article, Salts of known compounds, ester, polycrystal, isomer, Formulations or derivatives are not patentable, Unless they show a significant improvement in effectiveness over the original chemical. therefore, Only substantial inventions that significantly improve the therapeutic effect can be patented under this exclusion.

Novartis (Novartis) Interpretation of the case

In the landmark Novartis v. Union of India case, The first 3 (d) The scope of application of the article has been tested, The case involves drugs "Glivec (Glivec) " . Novartis manufactures imatinib mesylateβPatent application for crystalline form, Imatinib mesylate is a salt of the famous anticancer drug imatinib.

According to # 3 (d) The provisions of paragraph, The patent application was rejected, Because compared to the original patented chemical, imatinib, βThe version of imatinib did not significantly improve treatment effectiveness. After a legal argument, Decision of the Supreme Court, According to # 3 (d) The provisions of paragraph, The salt drug does not meet the requirements for the new patent, Because it only has minor changes, Did not improve the efficacy.

therefore, The first 3 (d) The law prohibits patents for evolutionary drug inventions that make minor changes to existing drugs, Effectively forbids attempts to perpetuate drugs. The Novartis case established its use in the analysis of patents for drugs that are structurally similar to recognized chemicals.

Protecting Indian traditional knowledge from biopiracy

"Indian patent Act" The first 3 (p) paragraph, Biological methods used for the production or reproduction of plants and animals are essentially excluded from the scope of the patent. The purpose of the drafters of this clause was to prevent the unethical plagiarism of biological patents for traditional Indian medical knowledge.

India has a rich tradition of using biological or plant resources for indigenous healing, Examples include Ayurveda and Unani therapy. For thousands of years, Indian plants have always had healing properties, People usually use them to treat diseases. however, Multinational companies use modern scientific terms to describe the advantages of these indigenous biological resources in an attempt to patent them, This is a blatant theft of traditional knowledge.

Correct historical mistakes——Revoking controversial patents on neem and turmeric

Turmeric and neem are two important examples of biopiracy. 1995 years, The University of Mississippi Medical Center received two U. S. patents. A (item) "Turmeric is used for wound healing" , The other term is "Turmeric is used to treat peptic ulcers" . In India, The healing power of turmeric has long been documented. After a long legal battle, India persuaded the United States Patent and Trademark Office (USPTO) Revoking these controversial turmeric patents.

India has demonstrated pioneering technology for the use of neem. This led to the rejection of patents in the United States and Japan relating to the neem extraction process and insecticide application. India has again successfully defended its traditional knowledge against patent monopolies.

2002 years "Indian patent Act" The amendment introduces No 3 (p) paragraph, Such biopiracy is prohibited. It essentially excludes biotechnology patents for the reproduction or growth of plants and animals. This protected India's traditional medical knowledge from sudden patent monopolies. India can prevent biopiracy by amending the patent exclusion rules for indigenous biological resources.

The first 3 (p) A compromise was reached between India's commitment to international patent law and its commitment to protecting indigenous traditional knowledge. Copyright regulations still allow for the protection of creative discoveries involving living resources. The granting of exclusive rights for traditional therapeutic uses is prohibited in the public domain. therefore, Such information is open to all. It affirms India's respect for its rich medical system, which is in the public domain (Like Ayurveda) Historical promise. This prevents it from falling into private hands through biopiracy.

conclusion

"Indian patent Act" The first 3 Articles and ordinances 4 The article places certain restrictions on patent eligibility, To preserve the country's policy objectives. These exclusions prohibit abstract concepts, algorithm, Natural substance, Patents are granted for traditional knowledge and other concepts.

These restrictions are designed to avoid software, Patent abuse and unnecessary monopolies in evolutionary medical discoveries and ancient medical knowledge. At the same time, Indian patent law promotes the use of technology, Human creativity and natural resources enable real creativity.

Novartis and Fred．Cases such as Alani's help explain exclusions, And set a precedent against patent infringement. India wants to strike the right balance between promoting research-driven innovation and limiting the use of specific objects. Evolving exclusions strive to strike this difficult balance, And aligned with India's public policy objectives. (Be compiled from www. mondaq. com)

TRANSLATORS: Wu Xian　proofread: Liu Peng

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