NON-PATENTABLE INVENTIONS: AN OVERVIEW

NON-PATENTABLE INVENTIONS: AN OVERVIEW

INTRODUCTION

This paper is a detailed study of non-patentable inventions. It uses various examples from history and the modern-day to highlight their significance in the broader framework of intellectual property rights.

A patent, according to the definition given by the World Intellectual Property Organisation (WIPO), is an exclusive right granted for an invention. They can be granted for inventions in any field of technology and it prevents others from commercially exploiting it for a limited period within the region in which the patent was granted. The order or magnitude of the creative mental effort by an inventor may be great or small, but if it is present even to a small degree, the resultant of the effort is a patentable invention, regardless of its particular importance in the relevant field.

PATENTABILITY OF AN INVENTION

Generally, the patentability of an invention is decided by the presence of five requirements. These are patentable subject matter, utility, novelty, non-obviousness and enablement. The laws of different countries have also defined what inventions qualify as patentable. According to Chapter II, Section 3 of the Indian Patents Act, the following inventions cannot avail of patent protection:

• Inventions that are frivolous or contrary to natural laws, public order or morality
• Scientific discoveries
• Mere discoveries of already existing substances
• Mere discoveries of new forms of known substances that do not lead to enhanced efficacy
• Mere admixing of mixtures that leads to aggregation of properties
• Mere aggregation or duplication of known devices
• Methods of agriculture or horticulture
• Diagnostic, therapeutic and surgical methods of treating humans or animals
• Essential biological processes for the propagation of animals and plants
• Mathematical, business or computer programs
• Aesthetic creations, including but not limited to, literary, dramatic and musical work
• Mental acts, rules or methods
• Presentations of information
• Topography of integrated circuits
• Traditional knowledge

According to Section 4 of the same Act, inventions relating to atomic energy are not patentable either.

EXAMPLES OF NON-PATENTABLE INVENTIONS

There have been numerous examples throughout history of inventions that did not fit the criteria of patentability but yet, have left a major impact in their respective fields and on humankind in general. While in some cases, creators choose not to patent their inventions for the benefit of humankind like penicillin, the World Wide Web etc., in other situations there is no option to apply for a patent for your invention as it does not pass the criteria of being ‘patentable’.

Scientific theories like Albert Einstein’s Theory of relativity and Electromagnetic theory were critical to scientific progress, despite being non-patentable. Something as widely known as a Rubik’s Cube is another example. Although its physical component is patented, the underlying concept of a 3D puzzle did not pass the patentability test as it was an abstract idea. Recipes for famous beverages like Coca-Cola cannot be patented as it is merely an idea and hence, the company has maintained it as a trade secret for over 135 years.

There are also examples of industries that thrive without patents like the software industry, particularly the open-source movement. Platforms like Linux and Apache revolutionized computing by allowing anyone to use, modify, and distribute their code freely.

Also Read: A study on the Paris Convention and Berne Convention in relation to protection of Intellectual property

JUDICIAL HISTORY OF NON-PATENTABLE INVENTIONS

●      Gottschalk v. Benson

The most notable case involving non-patentable invention is Gottschalk v. Benson (1972) where the US Supreme Court addressed the patentability of algorithms. The Court ruled that it was related to a numerical algorithm and an abstract idea. Hence, it was decided that it was not patentable according to the US intellectual property laws. This case was instrumental in shaping the boundaries of patent law, specifically related to software and algorithms.

• Novartis AG v. Union of India

Another landmark judgement came with the case of Novartis which dealt with the issue of whether a modified version of an existing drug used to treat cancer and other blood disorders, imatinib mesylate, could be patented. The Supreme Court of India ruled that Novartis’ application for a patent on the drug was not eligible under Section 3(d) of the Indian Patents Act, which prevents the patenting of mere modifications or new forms of known substances unless they show significantly enhanced efficacy. This judgement made sure that this essential drug was available to the public and ensured access to essential medical care for all.

CHALLENGES FACED BY INVENTORS

Inventors of non-patentables face multiple difficulties as their inventions lack the safety nets that are provided by a patent. Some of these challenges include:

1. Lack of legal protection

Patents protect the ideas of the owner from being copied or commercially exploited by others up to a standard period of twenty years, depending upon the regional patent laws. Non-patentables do not have this protection and are hence exposed to copying, modification and commercial exploitation. This is especially concerning for inventors in competitive industries, where imitators quickly replicate their original work and market an invention without facing any repercussions for the same.

2. Difficulty in monetisation

The lack of patents also translates into innovators finding it difficult to monetise their inventions which makes it difficult for them to sustain their work financially as their imitators can reduce their costs, hence outcompete the original creator. The lack of returns from their creation may force them to abandon their projects altogether. This results in a huge competitive disadvantage.

3. Attracting investment

Investors prefer to back ideas or work that are patented or trademarked due to their legal credibility and financial viability. Hence, it is difficult for innovators to attract investment in their non-patentable creations due to the risks involved despite their quality. In such a scenario, they might have to rely on personal funding or alternate financial channels.

4. Public perception

Patents or any other form of intellectual property are regarded as a marker of legitimacy among the public. This puts non-patentables at a disadvantage as they are seen as less credible or valuable compared to their patented counterparts. This results in reduced market confidence.

Some of the ways inventors can overcome these challenges are to maintain trade secrets, initiate crowdfunding campaigns, have strong contracts like Non-Disclosure Agreements (NDA) and be aware of the intellectual property law of their respective countries or regions.

THE ROLE OF AI IN GENERATING NON-PATENTABLE IDEAS

Artificial Intelligence (AI) applications are of extreme significance in this era of modern-day creation. But, the question that arises is should AI or rather, AI-generated inventions be patentable. AI-powered tools create ideas quickly and are usually cheaper and unburdened with human bias. but these generally fall outside the purview of what is considered ‘patentable’ by the existing patent laws. For example, DALL-E, a text-to-image AI model developed by OpenAI, produces artistic visuals while a generative AI chatbot like ChatGPT is adept at creating written content and concepts using prompts. Although their information cannot be patented, they are often helpful in generating ideas that help spark human creativity.

However, the use of AI in generating ideas also poses questions regarding its ownership and attribution. Who owns an AI-generated image- the user, the developer or the AI itself? Over-reliance on AI also has sparked debates on the ethical concerns of bias and the gradual erosion of human creativity. Since intellectual property comes under intangible assets, it is still unclear how this dilemma will move forward with time and the ever-rising use of AI in practically all fields involving creation.

CONCLUSION

Non-patentable inventions remind us of how ideas combined with creative monetisation techniques can produce innovations beyond the confines of traditional intellectual property models. Whether through trade secrets, other business models, or through openly sharing your ideas for the good of humanity, these ideas illustrate the fact that success does not have to be obtained through patents alone. Some of the most radical ideas that have shaped modern society have been intended to be shared and are not capable of being patented. While innovation in non-patentable areas might be difficult for inventors along with the rise of AI, these challenges can be overcome by planning, education and creative means of monetizing and protecting the idea.

CITATIONS

• Patents Act, No. 39 of 1970, ch. II, § 3 (India)
• Patents Act, No. 39 of 1970, ch. II, § 4 (India)
• Malcolm N. Rich, Patentable Inventions, 28 J. PAT. OFF. SOC’y 583 (August 1946).
• Gottschalk v. Benson, 409 U.S. 63 (1972).
• Novartis AG v. Union of India, (2013) 6 SCC 1 (India)
• Monika Verma, Inventions not patentable in India, iPleaders (Nov 14, 2024, 11.00 AM) https://blog.ipleaders.in/non-patentable-inventions/
• Bhavpreet Soni, A detailed study on non-patentable inventions in India, Soni’sVision (Nov 13, 2024, 4.45 PM)  https://www.sonisvision.in/blogs/a-detailed-study-on-non-patentable-inventions-with-examples