Whether something can be patented in India is two questions. Is it an invention at all — new, inventive, and capable of industrial use? And is it one of the things the Act says shall not be treated as an invention even if it passes those tests? The second list is long, distinctive to India, and where most of the argument in examination happens.
Quick reference
| The three tests | New; involves an inventive step; capable of industrial application |
| Excluded outright | Software as such, business methods, mathematical methods, methods of treatment, plants and animals, discoveries, and more |
| Pharmaceutical rule | A new form of a known substance is not patentable unless it is significantly more effective |
| Nuclear energy | Patentable since December 2025, except reserved and sensitive activities |
| Grace period | None in general; twelve months only for certain exhibitions, learned-society papers and trials, on request |
The three tests
An invention is a new product or process involving an inventive step and capable of industrial application.
New means not already disclosed anywhere in the world — in a document, by use, or otherwise — before the priority date. India applies absolute novelty; a disclosure in a foreign journal counts as much as one in an Indian one.
Inventive step means a feature that involves technical advance over what was known, or economic significance, or both, and that would not have been obvious to a person skilled in the art. Both halves matter: an advance that would have been obvious does not qualify, and nor does a non-obvious change that advances nothing.
Industrial application means capable of being made or used in some kind of industry. It excludes the purely theoretical.
What the Act keeps out
Even where the three tests are met, the Act lists things that are not to be treated as inventions. In plain terms:
- Frivolous inventions, and anything contrary to well-established natural laws
- Anything whose use would be contrary to public order or morality, or seriously harmful to human, animal or plant life or health, or to the environment
- Discoveries — a scientific principle, an abstract theory, or the finding of anything living or non-living that occurs in nature
- A new form of a known substance that does not enhance its known efficacy; a new property or new use of a known substance; or the mere use of a known process, machine or apparatus, unless it produces a new product or uses at least one new reactant. This is the provision that governs pharmaceutical patenting in India, and it treats salts, esters, polymorphs, isomers, particle size, combinations and other derivatives of a known substance as the same substance unless they differ significantly in efficacy
- A mere admixture that only aggregates the properties of its components, or a process for making one
- The mere arrangement or re-arrangement of known devices each working independently in a known way
- A method of agriculture or horticulture
- Any process for the medicinal, surgical, curative, prophylactic, diagnostic or therapeutic treatment of humans or animals
- Plants and animals in whole or part, other than micro-organisms — including seeds, varieties and species — and essentially biological processes for producing them
- A mathematical or business method, a computer programme as such, or an algorithm
- Literary, dramatic, musical or artistic works, and other aesthetic creations
- A scheme, rule or method for performing a mental act or playing a game
- A presentation of information
- The topography of integrated circuits
- An invention which is in effect traditional knowledge, or an aggregation of the known properties of traditionally known components
Two of these do most of the work in practice. The pharmaceutical rule decides whether a great many life-sciences applications survive at all, and the courts have insisted that “efficacy” means therapeutic efficacy, demonstrated by data. The software rule is the subject of a long and unsettled line of decisions: the position now is that a computer-implemented invention is not excluded merely because it involves a programme, if it produces a technical effect or contribution beyond the programme itself — but where the contribution lies is argued application by application.
Nuclear energy — changed in December 2025
For fifty years no patent could be granted for an invention relating to atomic energy. That was reversed by the SHANTI Act 2025, in force from 21 December 2025. Patents may now be granted for inventions for the peaceful uses of nuclear energy and radiation, subject to the general requirements of the Patents Act and to the SHANTI Act itself.
What remains outside the system is inventions relating to the activities that Act reserves — enrichment, reprocessing of spent fuel, production of heavy water — and anything the government considers sensitive or a matter of national security, which is deemed to belong to the government. For everything else in the field, the door is now open, and the secrecy provisions that let the Office withhold sensitive applications from publication continue to apply.
Prior disclosure and the grace period
India has no general grace period. An inventor who publishes, presents or sells the invention before filing has, in the ordinary case, destroyed its novelty.
There is a narrow exception. Disclosure at a notified exhibition, in a paper read before a learned society or published with its consent, or by working the invention in public for reasonable trial, does not count against the application if it is filed within twelve months of the disclosure. Since 2024 the exception has to be claimed, on a form filed with a fee — ₹500 for individuals, startups, small entities and educational institutions, ₹2,500 for others — and with evidence of the disclosure. It is not automatic.
The exception does not cover the ordinary case of a journal article, a conference talk outside a learned society, a product launch or an investor presentation. File first.
Frequently asked questions
What are the requirements for a patent in India? The invention must be new anywhere in the world, involve an inventive step — a technical advance or economic significance that would not be obvious to a person skilled in the art — and be capable of industrial application. It must also not fall within the categories the Act excludes.
Can software be patented in India? A computer programme as such cannot. A computer-implemented invention can, where it produces a technical effect or contribution beyond the programme itself. Where that line falls is decided application by application and is the most litigated question in Indian patent practice.
Can a new form of an existing drug be patented in India? Only if it is significantly more effective than the known substance — and efficacy means therapeutic efficacy, shown by data. Salts, esters, polymorphs, isomers, particle sizes and combinations of a known substance are otherwise treated as the same substance.
Can methods of medical treatment be patented in India? No. Processes for the medicinal, surgical, curative, prophylactic, diagnostic or therapeutic treatment of humans or animals are excluded. Products used in treatment — drugs, devices — can be patented if they meet the other requirements.
Are nuclear energy inventions patentable in India? Since 21 December 2025, yes — for the peaceful uses of nuclear energy and radiation — except inventions in the activities the SHANTI Act reserves, such as enrichment, reprocessing and heavy water production, and anything the government considers sensitive.
Is there a grace period for prior disclosure in India? Not in general. A twelve-month exception exists for disclosure at a notified exhibition, in a paper before a learned society, or by public working for trial, but since 2024 it must be claimed on a form with a fee and evidence. Ordinary publications and launches before filing destroy novelty.
Useful official resources
- IP India — patents — the Act, the Rules and the Manual of Patent Office Practice
See our related notes on how examination tests these requirements and every stage from filing to grant.
Unsure whether an invention clears the exclusions — a software method, a new formulation, a diagnostic? Talk to us before disclosing it.