A patent in India, under the Patents Act, 1970, protects an invention for 20 years from filing, but Section 3 excludes certain categories from patentability altogether -- notably Section 3(d)'s bar on incremental pharmaceutical innovation and Section 3(k)'s exclusion of software and algorithms "per se," both of which remain actively litigated boundaries.
Term and the examination process
Section 53 of the Patents Act, 1970 grants a uniform patent term of 20 years from the date of filing,
subject to payment of annual renewal fees. After filing, the application is published 18 months later (Section
11A), and the applicant must file a Request for Examination within 48 months (Section 11B). Both pre-grant
opposition (Section 25(1)) and post-grant opposition (Section 25(2)) are available to third parties who wish
to challenge a patent application or grant.
What cannot be patented -- Section 3
Section 3(d) excludes the mere discovery of a new form of a known substance that does not enhance its known
efficacy -- the provision aimed at preventing pharmaceutical “evergreening,” famously applied by
the Supreme Court in Novartis AG v. Union of India (2013) to refuse a patent for a modified form of imatinib
mesylate (Gleevec), and it remains the operative, actively applied standard for pharmaceutical patent
applications. Section 3(k) excludes mathematical or business methods, computer programs “per se,”
and algorithms -- but the “per se” qualifier means software that produces a genuine technical
effect, or is tied to a technical solution to a technical problem, can still be patentable, as clarified in
Patent Office guidelines and case law including Ferid Allani v. Union of India (Delhi High Court, 2019). This
remains a live, frequently litigated boundary as of 2026.
Compulsory licensing
Section 84 allows any person, three years after a patent is granted, to apply for a compulsory licence on
grounds including that the reasonable requirements of the public are not satisfied, the patented invention is
not available at a reasonably affordable price, or it is not being “worked” in India. India’s
one landmark compulsory licence remains Natco Pharma’s 2012 licence for Bayer’s Nexavar
(sorafenib), granted and upheld by courts -- no further compulsory licence has been granted since, and this
pattern has continued to hold through 2026, making compulsory licensing a rarely-used but available
safety valve rather than a routine mechanism.
Can I patent a new use for an existing drug in India?
Only if it meets Section 3(d)’s enhanced-efficacy bar -- the mere discovery of a new property or new
use of a known substance is excluded from patentability unless it results in a genuinely enhanced known
efficacy, a high bar the Supreme Court applied strictly in the 2013 Novartis case involving Gleevec.
Is software patentable in India at all?
Not as a bare computer program, but software tied to a technical effect or solving a technical problem can
be -- Section 3(k) excludes computer programs “per se,” and courts and Patent Office guidelines
have clarified this leaves room for patenting software-related inventions that go beyond an abstract program
alone.
How often does India actually grant compulsory licences on patents?
Rarely -- despite the statutory mechanism under Section 84 being available since three years after grant,
India has granted only one compulsory licence to date (Natco Pharma’s 2012 licence for Nexavar), and no
further compulsory licence had been granted as of 2026, making it an available but seldom-invoked
remedy.
