Chief Justice Warren Burger, in the case of Diamond v. Chakrabarty famously stated, “Anything under the sun created by man is patentable.” The case related to a human made micro-organisms (Pseudomonas Putida) configured to break up oil lumps in oil spills and metabolize hydrocarbons that constitute crude oil in such lumps. The USPTO initially refused the patent application on the ground that the subject matter was not patentable. Sidney Diamond was the Commissioner of Patents and Anand Chakrabarty was a genetic engineer working for General Electric. The US Supreme Court overturned the USPTO rejection and the rest is history.
In my opinion, this phrase singlehandedly paved the way for the grant of most inventions “created by man” in the US. The patentable inventions included new methods of treatment and diagnosis, methods relating to agriculture and horticulture, new uses of known substances including second medical uses, most computer-related inventions and even business methods. Subsequent judicial pronouncements in the US restricted the patentability of some business methods although others were allowed.
When we are dealing with a patentability question in India either a different “sun” shines over the sub-continent or what is “created by man” is different.
At present when we are dealing with inventions and patentability in 2026 and when India is aspiring to be recognized as a developed country, we will need to question whether the restrictions of patentability enshrined in Section 3 of the Patents Act, 1970 as amended are still applicable and do they throttle the genius of inventors in India.
The amendments to the Patents Act, 1970 were largely carried out in the years 2002 and 2005 although some of the restrictions on patentability remained from the basic Act of 1970. Section 3 has shielded the Indian pharmaceutical industry and has made India earn the title of the “pharmacy of the world”. Hospitals, doctors, and pharma giants, due to fear of lawsuits were prevented from evergreening their blockbuster molecules. The section also allowed engineers to innovate and produce low-cost diagnostic devices and testing kits without fear of being sued.
My opinion is that the restrictions imposed on patentability have served their purpose over the years since 1970 and more particularly since 2000. At the very least this limitation has been unfair to Indian scientists, researchers, farmers, medical practitioners and the current generation of engineers and scientists working in the field of computer science, software and artificial intellect.
A particularly hard-hitting section is Section 3(d) which mainly affects pharmaceutical, biotech and chemistry related inventions. The preamble to Section 3(d) is quaintly worded. It strips away all semblance of creativity by calling any new development discussed in the sub-section as “mere discovery”. Inventors in the field of ayurveda, other pharma, biotech and chemistry who conceive new forms of a known substance or a new use or a new property are categorized as “discoverers”. This sweeps away all hard work put in by Indian scientists in establishing a new therapeutic use for a known substance or a new form of the substance which has the potential to be useful. Scientists in India dealing with Ayurveda, Unani, and other forms of alternative medicine have no opportunity to find new applications for traditionally known substances even if these new uses were never thought of before. The unexpected therapeutic effect of known drugs like Aspirin, Sildenafil Citrate, Thalidomide, Minoxidil and Semaglutide are legendary. These unexpected effects were not “mere discoveries” but were a result of extensive scientific thought and experimental trials. These unexpected therapeutic effects brought recognition to the inventors who conceived and the patent holders who owned the patents.
As long as Section 3(d) exists in its present form an Indian scientist who is working in Ayurvedic drugs and finds a new use for a known botanic or formulation will not be able to obtain a patent for his/her findings, however extensive or painstaking his/her work maybe.
Again, it is easy to say that salts, esters, polymers, isomers, combinations and derivatives of compounds are the same as the compounds themselves. Any scientist will know that a lot of hard work, experimentation and “heart break” occurs in their development and may take years of research. In India such hard work and research go un-recognized.
Many Indian pharmaceutical companies who created inventions that originated in India including inventions relating to polymorph technologies, modified APIs, second medical use, insulin analogue formulations, biosimilars, modified delivery systems, control release technologies skipped first filings in India and filed the inventions either in the US, in Europe or under the PCT.
Because of the absence of the availability of patents in the field of methods of treatment or diagnosis, landmark achievements have gone largely unrecognized and their inventors have undeservedly not found their place under the “sun”.
Two painful examples come to mind. The first is Dr. P. K. Sethi’s low-cost method of fitting and rehabilitation of below the knee amputees, for example, diabetics who needed this amputation. The method is called the “Jaipur Foot Technique” but did not result in any substantial financial or reputational gain for the “inventor” Dr. P. K. Sethi. In any other jurisdiction this invention would have been worthy of the Noble Prize. The second is the Vellore “Rotavirus” Vaccine Administration Protocol led by Dr. Gagandeep Kang and his team at Vellore. The Protocol involves a three-dose series of an oral vaccine to infants and has saved the lives of several infants in India.
Our innovative farmers and agricultural scientists have also been deprived of recognition. For instance, little is known about the “guni/guli” system of crop intensification and the Phule Irrigation Scheduler a precision agriculture method of delivering location specific water to optimize irrigation developed by Mahatma Phule Krishi Vidyapeeth.
Lately, our start-ups who have developed innovative business methods are suffering a similar fate.
India has a realistic path towards exercising influence in the new world. Patents form an integral part of the intellectual capital of the world. Hitherto our patent system has been reactively defensive in nature. We realize that a patent system is necessary to protect and recognize inventors to not just to act as barriers to growth but as growth drivers. Many of the patents that have been granted are theoretical concepts and have little commercial impact. The examples discussed above are inventions that have actually been worked and could have been commercialized but for the lack of any intellectual value available to them. A nation that is striving towards a developed-country status, must build a resilient and innovation-driven ecosystem for its agricultural scientists, doctors, farmers, engineers, pharmacists software engineers and start up entrepreneurs. Their intellectual efforts deserve both recognition and the ability for commercialization.
In the 21st century power will shift to the entity that has the effective intellectual capital.
