What exactly does Section 3(b) say?
Section 3 of the Indian Patents Act, 1970 is the big “negative list”: things that are simply not “inventions” in the eyes of Indian law, no matter how new or inventive they might look. Section 3(b) is the ethics-and-public-interest part of that list.
Paraphrased, 3(b) says that the following is not an invention:
an invention whose primary or intended use or commercial exploitation could be contrary to public order or morality,
or which causes serious prejudice to human, animal or plant life or health or to the environment.
A couple of words do a lot of work here.
“Primary or intended use” means the law isn’t obsessed with every weird way someone could misuse your invention; it looks first at what it’s mainly built and sold for.
“Public order or morality” comes straight from international law. Article 27(2) of the TRIPS Agreement lets countries refuse patents if commercial exploitation must be prevented to protect ordre public or morality, including protecting life and the environment. You can see that wording in the TRIPS text on the WTO site
“Serious prejudice” raises the bar: not every harmful thing is automatically out. The harm has to be serious and grounded in something more concrete than vibes or moral panic. Recent commentary, like this overview from Mondaq, emphasises that 3(b) is meant as a narrow safeguard, not a general “we don’t like this industry” filter.
How do courts now read 3(b)? The emerging four-part test
If you read the older teaching material and the Patent Office Manual, Section 3(b) looks simple and a bit brutal. It gives examples like a device for committing theft or burglary, a machine for counterfeiting currency, or a method for gambling.
But as real disputes landed in court, especially around nicotine devices and human embryos, judges were forced to be more precise. Out of that, a more structured way of thinking about 3(b) is emerging.
Put very simply, courts and serious commentators now work through four questions:
First, what is the primary or intended use, and the realistic commercial exploitation of the invention?
Second, if you imagine that use being rolled out at scale, does it clash with public order in a serious way?
Third, does it cross a line of morality that a modern legal system can legitimately enforce?
Fourth, even if society is comfortable with the idea in general, does the invention cause serious prejudice to human, animal or plant life, health, or the environment?
You can see this thinking most clearly in two lines of decisions from the Calcutta High Court: the ITC nicotine aerosol cases and the recent human embryo case, Shroff Geeta v Assistant Controller of Patents & Design.
This four-part structure is never written out in the Act, of course. It’s the product of courts trying to breathe some logic into vaguely worded phrases that could otherwise swallow half the innovation economy.
Stories from the courtroom: nicotine devices and human embryos
Abstract clauses only become interesting when you attach stories to them. Section 3(b) has two big storylines right now.
The first is the nicotine and aerosol device saga.
ITC Limited filed patent applications for heater assemblies that generate aerosols—devices that can be used in reduced-risk tobacco products, but also more broadly with different substrates. The Patent Office rejected them under Section 3(b), essentially saying: this is linked to tobacco, tobacco hurts health, therefore the invention causes serious prejudice to life and health and is contrary to public order and morality.
The Calcutta High Court, in decisions like ITC Limited v Controller of Patents & Designs
The Court said: morality and public health concerns can’t, by themselves, justify a rejection unless they’re backed by independent scientific or technical evidence and cogent reasoning. It stressed two points.
One, Section 3(b) is not a free-floating “we don’t like tobacco” provision. It targets inventions whose primary or intended use or commercial exploitation crosses a concrete public order, morality, or serious harm threshold.
Two, a regulatory ban like the Prohibition of Electronic Cigarettes Act, 2019 is not automatically a patentability ban. Whether a product can be sold and whether the underlying technical solution can be patented are related but separate questions.
In Shroff Geeta v Assistant Controller of Patents & Design, the invention involved processes that required the destruction of human embryos for industrial or commercial exploitation. The Patent Office refused the patent under Section 3(b), and the Calcutta High Court upheld that refusal.
Here, the Court leaned heavily on the order public and morality language from TRIPS and from European Patent Convention jurisprudence on embryo and stem-cell inventions. The basic message: if the core of the invention involves destroying embryos for commercial exploitation, that’s exactly the kind of thing Section 3(b) is meant to keep out of the patent system.
Put the two lines together and you get a sharper picture. Courts are sceptical of lazy, moralistic 3(b) objections, especially against “ordinary” products like nicotine heaters where harm can be debated and mitigated. At the same time, they are comfortable using 3(b) to draw a hard line in extreme biotech scenarios that cut close to the moral foundations of the legal system.
So what does “public order” really mean in patent law?
Public order, or “ordre public” in TRIPS language, isn’t a synonym for “things the government doesn’t like.” It’s closer to: serious threats to the basic functioning, peace, or legality of society.
That’s why the Patent Office Manual and standard textbooks consistently use examples like a machine for committing theft or burglary, a method for counterfeiting currency, or a device whose very design is to facilitate gambling or organised crime. These aren’t just controversial; they are built to undermine legal order itself. You can see those examples in the Manual of Patent Office Practice and Procedure
So if you’re building:
a general-purpose communication tool,
a data visualisation engine, or
a logistics optimisation algorithm,
public order isn’t really your problem. Someone could always misuse your tool, but that’s true for email, encryption and cars. Section 3(b) isn’t aimed at remote or speculative misuse. It’s at inventions whose main role is to destabilise legal order.
You feel the line more sharply if you imagine a “CrimeTech pitch day.” If the whole pitch is: “This device makes it much easier to rob ATMs without detection,” you’re squarely in 3(b) territory. If the pitch is: “This tool helps banks detect suspicious ATM activity,” you’re on the other side of the fence.
Where does “morality” come in?
Morality in patent law isn’t about enforcing every social norm or religious sentiment. Courts and commentators are careful to avoid turning patent examination into a moral police exercise.
Indian writing on this, often drawing on European experience, points out that there’s a difference between majority morality and what some call “constitutional morality”: values grounded in rights, dignity, and basic human interests. Debates in Europe around patents for sex toys, stem-cell lines, and transgenic animals show how messy this can get. The European Patent Convention’s Article 53(a) uses a similar “order public or morality” phrase, and cases like Brüstle v Greenpeace have shaped European law on embryos and stem cells.
Indian courts haven’t copied those decisions wholesale, but in Shroff Geeta the Calcutta High Court clearly looked at that European line of thinking and applied the spirit of it. If the heart of your invention involves something that the legal system itself treats as impermissible like using human embryos as raw material for commercial products, morality under 3(b) is triggered in a serious way.
On the other hand, using “morality” as a catch-all to reject inventions just because they sit in a disliked industry has been heavily criticised. The SpicyIP piece on nicotine delivery devices, “Section 3(b) Rejections: Patent Office Rejects Claims for Nicotine Delivery Devices,” is a good example of that critique. It points out that if e-cigarettes are automatically immoral, why have traditional cigarette patents been granted for years?
That kind of inconsistency is exactly why the Calcutta High Court, and later commentary in pieces like “What do you intend? Section 3(b) and the ‘intent’ principle,” insist on an evidence-based, intent-focused reading.
“Serious prejudice” to life, health, and the environment
The second limb of 3(b) deals with inventions that cause serious prejudice to human, animal or plant life or health or to the environment. That phrasing matters: not “any risk at all,” but serious prejudice.
Why does this matter for a founder or innovator? Because almost every interesting technology interacts with risk. Pesticides help agriculture but can harm ecosystems, AI systems can optimise decisions but also amplify bias, healthtech can monitor patients but also raise privacy concerns. If every risk killed patentability, Section 3(b) would become a weapon against any disruptive industry.
Recent writing, such as Conventus Law’s analysis of aerosol devices and Lexology’s note on the “intent principle” judgment, reads the Calcutta decisions as setting a higher bar: the Patent Office must link the invention’s normal, intended working to serious prejudice, and it must do so with credible technical material, not assumptions.
For you, that translates to a practical discipline. You don’t have to prove that your product is saintly, but you should be able to show that its ordinary, designed use is either harm-reducing or at least neutral, and that any risks are managed by built-in safeguards.
A founder’s lens: will 3(b) kill my patent?
Let’s make this concrete. Imagine three broad buckets of inventions.
In the first bucket, think of typical SaaS products, most enterprise software, project management tools, basic analytics dashboards, logistics optimisers, and climate-friendly process improvements. These are practically never attacked under 3(b) because neither public order, nor morality, nor serious prejudice are naturally triggered by their core use. If your startup lives here, Section 3(b) is more exam fodder than real risk.
In the second bucket, think of nicotine and tobacco-adjacent products, intense surveillance systems, fintech tools that sit close to gambling or speculative prediction markets, gene-editing kits, and powerful bio-hacking tools. Here, Section 3(b) is not a death sentence, but you need to be careful. You want your patent specification and your eventual arguments to frame the invention as serving legitimate, socially acceptable objectives: harm reduction, safety, fraud detection, public health benefits. The “intent principle” article on SpicyIP, and cases like ITC’s, show that how you articulate that intent can shape the 3(b) outcome dramatically.
In the third bucket sit the outliers: inventions whose very purpose is to commit crime, enable serious rights violations, or use ethically protected entities as raw material. A machine to counterfeit currency, a dedicated “ATM robbery kit,” or a process that necessarily involves destroying human embryos to mass-produce a cosmetic ingredient are classic 3(b) trouble. The Patent Office Manual frankly lists things like burglary devices, gambling machines and methods of adulterating food as examples that will fall foul of Section 3(b). The Shroff Geeta decision shows that embryo-based inventions whose core involves destruction for industrial exploitation will almost always be excluded.
If you’re operating in that third bucket, the realistic strategy is not “beat 3(b) with clever drafting.” It’s to redesign the business or the technology so its primary use aligns with a defensible public interest.
One more thing founders often ask: “If my product is banned by some other law, is my patent application dead?”
The ITC judgments suggest the answer is: not automatically. Regulatory bans like the e-cigarette law decide whether you can sell or advertise a product; Section 3(b) decides whether the underlying technical solution deserves patent protection at all. The Calcutta High Court was explicit that the e-cigarette ban statute and the patent system serve different functions.
That separation matters for long-term strategy. A technology might be temporarily uncommercialisable in India but still worth protecting for future policy shifts or foreign markets.
For students and professors: how to think and write about 3(b)
If you’re on the academic side of things, Section 3(b) is a gift. It’s where doctrinal patent law, ethics, and public policy collide.
A solid exam or research answer usually starts by situating 3(b) properly: inside Section 3’s negative list, alongside provisions like 3(a) (frivolous or contrary to natural laws), 3(d) (new forms of known substances), and 3(i)/(j) (methods of treatment and certain biological materials).
From there, TRIPS Article 27(2) and EPC Article 53(a) give you the international context and vocabulary.
The heart of any serious answer now has to be the Indian case law.
Shroff Geeta gives you the counter-example where the Court upholds a refusal, applying what many commentators describe as a four-pronged 3(b) test and leaning on comparative embryo jurisprudence.
Once you lay that doctrinal foundation, there’s a lot of room for critical commentary.
You can ask whether 3(b) is being used consistently across industries. You can compare the treatment of nicotine devices with other harmful but patent-rich sectors like fossil fuels or sugary beverages. You can explore the tension between majoritarian morality and constitutional values when deciding what counts as “morality” for patent exclusion. Or you can zoom out and ask whether patent law is even the right place to wage moral battles, or if sector-specific regulation is better suited.
Professors get something else out of this: teaching material that doesn’t feel stale. Section 3(b) used to be a throwaway example in class. Now you can build full seminars around current judgments, social controversies and policy trade-offs, using real cases that are less than a year old.
Where does this leave us?
Section 3(b) sits at an uncomfortable intersection. It’s where your clever idea meets the State’s sense of what’s acceptable to encourage, protect, and commercialise.
For innovators, that’s oddly good news. It means you can work in sensitive spaces healthtech, harm-reduction, fintech, even certain bio-domains without automatically triggering a moral veto, as long as you design and describe your inventions responsibly.
For students and professors, it’s a chance to watch doctrine being written in real time, instead of memorising static textbook lines. Today’s case comment can turn into tomorrow’s exam question or journal article.
And for the system itself, Section 3(b) is becoming what it probably should have been all along: not a moral panic button, but a safety valve, reserved for those rare inventions where, even after you admire the ingenuity, the law is entitled to say, “this, we won’t bless with a patent.”
