Intellectual Property Rights - Law and Practice · Types of Intellectual Property

Patents under the Patents Act, 1970: Patentability, Rights and Term

Updated 11 October 2026 · Fact-checked

A **patent** is an exclusive right granted by the Controller for an **invention** that is new, involves an inventive step and is capable of industrial application, and is not excluded by Section 3 or 4. In India it lasts 20 years from the date of filing. To answer questions, apply the tests to the facts, then conclude.

Understand Patents

A patent is a bargain between an inventor and the State. The inventor discloses the invention fully. In return, the law gives a time-limited monopoly. Others can then learn from the disclosure, and after the term ends, anyone can use it.

The Patents Act, 1970 defines an invention as a new product or process involving an inventive step and capable of industrial application. So three tests sit at the core: novelty (not known or published anywhere before the filing or priority date), inventive step (a feature that makes it non-obvious to a person skilled in the art, involving technical advance or economic significance) and industrial applicability (it can be made or used in an industry).

Passing these tests is not enough. The invention must also avoid the exclusions. Section 3 lists things that are not inventions, such as a mere discovery of a scientific principle or a natural substance, a mere new use of a known substance, a mathematical or business method, a computer program per se, a mere arrangement or duplication of known devices, and methods of agriculture or horticulture. It also covers methods of treating humans or animals, and traditional knowledge. Section 4 bars patents for inventions relating to atomic energy. Section 3(b) also excludes inventions whose commercial exploitation would be contrary to public order or morality, or seriously harm human, animal or plant life or the environment.

Once granted, the patentee gets the exclusive right to prevent third parties from making, using, offering for sale, selling or importing the patented product in India. For a process patent, the right extends to using the process and to the product made directly by it. The patentee may also assign or license the patent. The term is 20 years from the date of filing the application. The patent must be renewed by paying annual renewal fees, or it lapses.

A patent differs from copyright. A patent protects a technical idea or solution and needs examination and grant. Copyright protects the expression of an idea, such as a book or software code, and arises automatically on creation. A patent gives a strong monopoly but needs full disclosure and has a fixed term. Copyright does not stop independent creation.

Key rules to remember

Definition of invention: Invention = new product or process + inventive step + capable of industrial application; All three limbs must be met. Missing any one means no patent.
Term of a patent: Term = 20 years from the date of filing the application; Counts from the filing date, not the grant date. Renewal fees are payable every year to keep it alive.
Test of patentability: Patentable = satisfies the invention test + not excluded by Section 3 or 4; Always check the exclusions after the three tests.
Scope of product patent right: Right to prevent others from making, using, offering for sale, selling or importing the product in India; Applies without the patentee's consent. For a process patent the right covers using the process and the product obtained directly by it.
Who may apply: True and first inventor, or assignee, or legal representative of a deceased person; Section 6. Application may be made alone or jointly.

How to solve Patents questions

Use this order for any case-based question on patents. It matches the expected format: provision, analysis, conclusion.

1Identify what the question asks: is it patentability, rights, term, or who can apply.
2State the definition of invention and the three tests in one or two lines.
3Apply novelty to the facts: was it published, used or known before the filing date?
4Apply inventive step and industrial applicability, using the facts given.
5Check Section 3 and Section 4 exclusions, and name the clause that fits if one applies.
6If granted is assumed, state the patentee's rights and the term of 20 years from filing.
7Write a clear conclusion in one line, and add a practical point such as filing early or keeping the invention secret until filing.

Quickest way: Three tests, then exclusions

When to use it: Use when the question is a short fact pattern asking whether something can be patented.

Write: new, inventive, industrially applicable.
Mark each as met or not met from the facts in one line each.
Scan for Section 3 keywords: discovery, mere new use, business method, computer program per se, agriculture, treatment of humans.
Conclude: patentable or not, with the reason.
Add the 20-year term from filing if the answer is yes.

Common mistakes in Patents

Counting the 20-year term from the date of grant.
Students link a right to the date it is granted.
Fix: Remember the term runs from the date of filing. Grant usually comes later, so the effective monopoly is shorter.
Saying any computer program or software cannot be patented.
Section 3(k) is remembered in short form.
Fix: The exclusion is for a computer program per se. Write the words 'per se' and note that a technical solution with a real technical effect needs separate analysis.
Treating a discovery as an invention.
Students think finding something new is the same as creating it.
Fix: A discovery of a natural substance or scientific principle is excluded. An invention needs human technical intervention.
Skipping the exclusions after the three tests.
The three tests feel complete.
Fix: Always add a line on Section 3 and Section 4. An invention can pass all three tests and still be barred.
Confusing patent with copyright in comparison answers.
Both are IP rights and both give exclusivity.
Fix: Contrast on subject matter (idea or technical solution versus expression), how the right arises, and term. Patent needs grant. Copyright arises on creation.
Ignoring prior publication by the inventor himself.
Students assume novelty is only lost by others' acts.
Fix: Public disclosure by the inventor before filing can destroy novelty, subject to the limited grace provisions in the Act. Advise filing before any disclosure.

Worked examples

Example 1

Ravi, a researcher in Pune, finds a naturally occurring bacterium in soil and publishes a paper identifying it. He applies for a patent on the bacterium itself. Advise whether it is patentable.

Show the solution

Provision: an invention must be new, involve an inventive step and be capable of industrial application. Section 3 excludes the discovery of any living or non-living substance occurring in nature.
Analysis: Ravi did not create the bacterium. He only found it, so this is a discovery of a natural substance.
Also, he has published a paper. If this was before filing, novelty may be affected as well.
Conclusion: the bacterium as such is not patentable under Section 3. He may consider whether a new, non-obvious process using it, or a modified form made by human intervention, can be claimed, and should file before any further publication.

Answer: The bacterium as found in nature is not patentable, because it is a mere discovery excluded by Section 3. A separate process or modified form with human intervention may qualify.

Example 2

Meridian Tools Ltd. files a patent application on 10 March 2027 for a new energy-saving motor. The patent is granted on 15 June 2029. State the rights of the company and the date on which the term ends.

Show the solution

Provision: the term of a patent is 20 years from the date of filing.
Calculation: filing date is 10 March 2027. Adding 20 years gives 10 March 2047.
Grant date is 15 June 2029. It does not change the end date.
Rights: the company can stop others from making, using, offering for sale, selling or importing the motor in India without consent. It can assign or license the patent.
Condition: renewal fees must be paid every year, or the patent lapses before that date.

Answer: The patent term ends on 10 March 2047, counted from filing. During the term, the company has exclusive rights over the motor in India, subject to renewal fees being paid.

Exam tips

Write the definition of invention first. Examiners give marks for the provision before the analysis.
Learn the Section 3 list by keywords, and quote the clause only if you are sure of it.
In comparison questions such as patent versus copyright, answer in a short table-like list of points: subject, how it arises, term, disclosure.
For fact-based questions, mention the filing date logic for novelty and term. It shows practical understanding.
End every answer with a one-line conclusion and, if space allows, a drafting or compliance point such as filing before disclosure.

Practice questions from Types of Intellectual Property

Patents: frequently asked questions

What is patentable subject matter in India?

An invention that is new, involves an inventive step and is capable of industrial application is patentable. It must not fall under the exclusions in Section 3 or Section 4 of the Patents Act, 1970. Examples of exclusions are mere discoveries, business methods and computer programs per se.

What is the term of a patent in India?

The term is 20 years from the date of filing the application. Annual renewal fees must be paid to keep the patent in force. If they are not paid, the patent lapses.

How do I file a patent in India in simple steps?

You file the application with the Patent Office with a specification, which is then published and examined after a request for examination. The Controller issues a report, objections are answered, and after any opposition the patent is granted. Study the separate topics on application, examination and grant for exact timelines.

What is the difference between a patent and copyright?

A patent protects an invention, which is a technical solution, and is granted only after examination for a term of 20 years from filing. Copyright protects original expression such as writings, art and software code, and arises automatically on creation. Copyright does not protect the underlying idea.