In India, Sections 3 and 4 of the Patents Act, 1970 list what cannot be patented, even if it is new. The main exclusions are: discoveries of things found in nature, abstract theories, mathematical and business methods, computer programs and algorithms 'per se', methods of medical treatment, methods of agriculture, plants and animals, new forms or new uses of known substances without better efficacy, simple mixtures and rearrangements, artistic works, presentation of information, traditional knowledge and atomic energy inventions. An idea also fails if it isn't new, isn't inventive or can't be used in industry.
Many inventors come up with something genuinely new, only to find out it can't be patented. Not because someone filed it first, but because Indian law says that kind of thing is never patentable. Knowing these exclusions before you file can save you months of examination and the cost of a refusal.
India's list of exclusions sits in Section 3 (what is "not an invention") and Section 4 (atomic energy) of the Patents Act, 1970. This guide walks through each one in plain language, with examples, and shows what you can protect instead.
First, the three basic tests
Before the exclusions even come into play, every invention must pass three tests under Section 2 of the Act:
- Novelty: it must be new and not published, used or sold anywhere in the world before your filing date.
- Inventive step: it must not be obvious to an expert in that field, and should be a technical advance or have economic significance.
- Industrial application: it must be capable of being made or used in an industry.
Pass all three, and the examiner then checks whether your invention falls into one of the excluded categories below.
The full list: what Section 3 excludes
| Clause | Not patentable | Example |
|---|---|---|
| 3(a) | Frivolous inventions, or ones contrary to established natural laws | A perpetual motion machine |
| 3(b) | Inventions contrary to public order or morality, or seriously harmful to human, animal or plant life, health or the environment | A device for burglary; a gambling machine |
| 3(c) | Mere discovery of a scientific principle, an abstract theory, or a living or non-living thing occurring in nature | Discovering a new bacterium or mineral in nature |
| 3(d) | A new form of a known substance without enhanced efficacy; a new property or new use of a known substance; mere use of a known process | A new salt of an existing drug that works no better |
| 3(e) | A mere mixture whose properties are just the sum of its ingredients | Mixing a painkiller and a vitamin with no combined (synergistic) effect |
| 3(f) | Mere arrangement, rearrangement or duplication of known devices, each working independently | A torch fitted to an umbrella |
| 3(h) | A method of agriculture or horticulture | A new way of planting or watering crops |
| 3(i) | A method of medical, surgical, diagnostic or therapeutic treatment of humans or animals | A new surgical technique |
| 3(j) | Plants and animals (whole or parts), seeds, varieties and species, and essentially biological processes, other than micro-organisms | A new hybrid rice variety |
| 3(k) | Mathematical or business methods, computer programs per se, and algorithms | A new pricing formula; app code by itself |
| 3(l) | Literary, dramatic, musical or artistic works, including films and TV productions | A novel, a song, a painting |
| 3(m) | A mere scheme, rule or method of performing a mental act or playing a game | Rules of a new board game |
| 3(n) | Presentation of information | A new timetable layout |
| 3(o) | Topography (layout) of integrated circuits | A chip's circuit layout |
| 3(p) | Traditional knowledge, or a mere aggregation or duplication of known properties of traditional components | Turmeric's known use for healing wounds |
How these exclusions play out depends on your field. See our guides to patents for software, AI and machine learning, pharma, medical devices, mechanical products, EV and clean-tech and agritech and food.
Clause 3(g) was removed from the Act in 2002, which is why the list jumps from (f) to (h). Section 4 separately bars patents for inventions relating to atomic energy that fall under the Atomic Energy Act, 1962.
The exclusions that trip up most applicants
1. Software and apps: Section 3(k)
This is the exclusion we're asked about most. A computer program "per se" (the code or logic by itself) cannot be patented. But that does not mean every software-related invention is refused.
Indian courts have held that an invention implemented through software can be patented if it shows a technical effect or technical contribution, beyond simply running a program on a computer. In Ferid Allani v. Union of India (Delhi High Court, 2019), the court said an invention is not barred merely because it is based on a computer program, if it produces such a technical effect. Later Delhi High Court decisions have recognised faster or more efficient computing, better device control and improved network security as technical effects.
- Likely refused: an app that calculates loan EMIs using a standard formula; a new algorithm for ranking products, claimed by itself.
- Possibly patentable: a method that reduces the data a phone uses to stream video; software that improves how a medical device processes sensor signals.
Business methods are treated more strictly: courts have described the business-method exclusion as absolute, with no "per se" qualifier. How the claims are drafted makes a real difference here, so this is where an experienced patent agent matters most. Read more in how to patent an idea in India.
2. New forms and new uses of known medicines: Section 3(d)
India does not grant patents for a new form of a known substance (such as a new salt, ester, polymorph or isomer) unless it shows a significant enhancement in known efficacy. For medicines, the Supreme Court has read efficacy as therapeutic efficacy.
In Novartis AG v. Union of India (2013), the Supreme Court refused a patent on a new form of the cancer drug imatinib (Glivec) because better therapeutic efficacy wasn't shown. A new use for a known substance (for example, an old drug repurposed for a new disease) is also not patentable in India.
3. Medical treatments: Section 3(i)
Methods of treating, diagnosing or operating on humans and animals cannot be patented, so doctors stay free to use the best treatment for their patients. However, the medical devices, instruments and drugs used in treatment can be patented if they meet the three basic tests.
- Not patentable: a new method of performing knee surgery.
- Patentable (if new and inventive): a new surgical instrument used in that surgery.
4. Plants, animals and farming: Sections 3(h) and 3(j)
Plants, animals, seeds and plant varieties cannot be patented, and nor can farming or gardening methods. Micro-organisms are the exception: a genetically modified micro-organism can be patentable. New plant varieties can instead be protected under the Protection of Plant Varieties and Farmers' Rights Act, 2001.
5. Simple mixtures and combinations: Sections 3(e) and 3(f)
Putting two known things together isn't enough on its own. A mixture is only patentable if the combination produces a synergistic effect, something more than the sum of its parts. Similarly, combining known devices that each keep working independently, like a pen with a built-in torch, is not an invention.
6. Traditional knowledge: Section 3(p)
Knowledge that is already traditionally known, such as the medicinal uses of neem, turmeric or basil, cannot be patented. India maintains the Traditional Knowledge Digital Library (TKDL) so examiners worldwide can check applications against it. Turning traditional knowledge into a genuinely new and inventive product or process, however, can still be patentable.
Can't patent it? Here's how else to protect it
| What you've created | Protect it with |
|---|---|
| Software code, app content | Copyright (automatic; registration available) |
| App or product name and logo | Trademark registration |
| The look of a product | Design registration |
| A new plant variety | Registration under the PPV&FR Act, 2001 |
| An integrated circuit layout | Registration under the Semiconductor Integrated Circuits Layout-Design Act, 2000 |
| A recipe, formula or business process | Trade secret: keep it confidential under NDAs |
| A book, music, art or film | Copyright |
See our guide on patent vs trademark vs copyright to work out which protection fits.
Before you file: three practical steps
- Check the exclusions first. If your invention is close to one of the categories above, have a patent agent assess it before you spend on drafting.
- Run a patentability search. This checks whether your invention is new and inventive compared with existing patents and publications. Start with a patent search.
- Draft for the technical contribution. For software, medical devices and chemical inventions, the way the claims are written often decides whether the application survives Section 3. Professional patent drafting is worth it here.
At CorpBridge, patent work is handled only by registered patent agents. If you're not sure whether your idea can be patented, we'll give you an honest assessment before you file, with every government fee shown upfront.
This guide is general information, not legal advice. Whether a particular invention is patentable depends on its specific facts and how it is claimed.
Frequently asked questions
Can software be patented in India?
A computer program 'per se' can't be patented under Section 3(k). But an invention implemented through software can be patented if it shows a technical effect or technical contribution, such as making a device or system work faster, more efficiently or more securely.
Can a business idea or business method be patented in India?
No. Business methods are excluded under Section 3(k), and Indian courts have treated this exclusion as absolute. You can protect the brand with a trademark and keep processes confidential as trade secrets.
Can I patent a new use of an existing medicine?
No. Under Section 3(d), the mere discovery of a new use for a known substance is not patentable in India. A new form of a known drug is only patentable if it shows significantly enhanced therapeutic efficacy.
Can a surgical method be patented?
No. Methods of medical, surgical, diagnostic or therapeutic treatment are excluded under Section 3(i). But a new surgical instrument, medical device or drug can be patented if it is new and inventive.
Can plants or new crop varieties be patented in India?
No. Plants, animals, seeds and varieties are excluded under Section 3(j). New plant varieties can be protected instead under the Protection of Plant Varieties and Farmers' Rights Act, 2001. Micro-organisms can be patentable.
Is an idea patentable if it combines two existing products?
Only if the combination produces a synergistic effect, a result greater than the sum of the individual parts. A simple mixture (Section 3(e)) or a rearrangement of known devices working independently (Section 3(f)) is not patentable.
This guide is general information, not legal or tax advice. Rules and thresholds change; speak to an expert about your situation.