The Dual Faces of Scientific Discoveries: Public Domain vs. Private Innovation

Science advances when knowledge is shared freely. But innovation needs a financial incentive to thrive. This fundamental tension – between keeping scientific discoveries in the public domain and granting private rights over their applications – lies at the heart of intellectual property law. Louis Pasteur, one of the greatest scientists of the 19th century, lived this tension practically. His story is not just history; it is a template for understanding how modern patent systems, including India’s, try to walk the same fine line.

Discovery vs. invention: the foundational distinction 🔗

Before anything else, it helps to be precise about what “scientific discovery” means in a legal sense. A discovery reveals something that already exists in nature – a new property of a substance, a biological phenomenon, a natural law. An invention, on the other hand, creates something new that did not previously exist, or applies existing knowledge in a novel and useful way.

This distinction is not merely academic. It is the foundation of every patent system in the world. According to WIPO’s overview of the Indian patent system, the purpose of patent law is to encourage scientific research, new technology, and industrial progress – but only by rewarding practical, applied innovation, not the discovery of natural truths that belong to everyone.

Gravity existed before Newton observed it. Microorganisms existed before Pasteur studied them. These are discoveries, and no one can own them. But the process Pasteur developed to kill harmful microbes in wine using controlled heat? That was an invention – a specific, practical, and novel application of his scientific understanding.

The Pasteur model: publishing science, patenting process 🔗

Louis Pasteur’s career offers perhaps the clearest historical illustration of how this distinction operates in practice. In the 1860s, Pasteur was commissioned to investigate why French wines were spoiling. His research revealed that microorganisms were responsible for the fermentation and souring of beverages – a scientific discovery that he published, contributing it to the body of public knowledge.

But Pasteur did not stop at the science. He developed a specific technique: heating wine to between 60°C and 100°C for a controlled period to destroy harmful microbes while preserving the product’s character. He patented this process in 1865 to fight what he described as the “diseases” of wine. This method – now known as pasteurisation – was later extended to beer, milk, juice, and dozens of other products, saving countless lives from foodborne illness.

What Pasteur did was strategically deliberate. He kept the underlying science – germ theory, the role of microorganisms – in the public domain through publication. He protected only the specific industrial process he engineered. This split approach allowed the scientific community to build on his discoveries freely, while he retained exclusive rights over a commercially valuable application. In 1873, Pasteur filed a further patent with the U.S. Patent Office – one covering a method for the manufacture of beer and treatment of yeast, which became the first patent to reference a microorganism.

This pattern – publish the principle, patent the process – remains the guiding model for how researchers, universities, and corporations approach IP strategy today.

Why scientific discoveries cannot be patented 🔗

The reason patent law excludes pure scientific discoveries is not arbitrary. It reflects a deliberate policy choice rooted in public interest. Scientific principles are the building blocks of all future knowledge. If a researcher could patent the laws of thermodynamics or germ theory itself, every subsequent scientist working in that domain would need a licence. That would paralyse research, concentrate knowledge in private hands, and ultimately harm the very innovation the patent system is meant to promote.

Under the Indian Patents Act, 1970, Section 3(c) explicitly states that the mere discovery of a scientific principle, the formulation of an abstract theory, or the discovery of any living thing or non-living substance occurring in nature does not qualify as a patentable invention. This provision ensures that fundamental knowledge remains a shared resource – what lawyers call the “public domain.”

The logic is straightforward: discovering something that nature has already made is not the same as inventing something new. Patent systems reward creators, not explorers of pre-existing reality.

The utility threshold: when discovery becomes invention 🔗

The critical legal question is always: at what point does a scientific discovery cross the line into a patentable invention? Patent experts often refer to this as the utility threshold – the point at which a natural phenomenon or abstract idea is sufficiently transformed into a practical, useful application.

For a scientific principle to become patentable, the applicant must demonstrate that the knowledge has been applied to solve a specific industrial problem or to create a useful process, machine, or product. This application must go beyond merely observing or explaining the principle – it requires genuine human intervention that adds something new to what nature already provided.

Consider a few examples that illustrate where this line sits:

• Unpatentable: Discovering that a deep-sea microorganism naturally degrades plastic. This is a discovery of a living substance occurring in nature – excluded under Section 3(c).
• Potentially patentable: Genetically modifying that same microorganism to improve its degradation efficiency under industrial conditions, or developing a novel industrial process to deploy it at scale. The human intervention transforms discovery into invention.
• Unpatentable: Observing that a particular plant compound has antimicrobial properties (a new property of a known substance – excluded under Section 3(d)).
• Potentially patentable: Developing a novel synthesis method to extract, purify, and concentrate that compound into a specific therapeutic formulation with proven enhanced efficacy.

The consistent principle across all these examples: the law does not reward the act of finding. It rewards the act of creating something useful from what was found.

India’s legal framework: Section 3 and the public domain 🔗

India’s approach to patentability is notably more protective of the public domain than many other jurisdictions. Beyond Section 3(c), which excludes scientific discoveries, several other provisions of the Patents Act, 1970 reflect this philosophy:

Section 3(d) is arguably the most significant and internationally discussed provision. It bars patents for new forms of known substances unless the applicant can demonstrate a meaningful enhancement in the substance’s known efficacy. This provision was specifically designed to prevent evergreening – a practice where pharmaceutical companies make minor modifications to existing drugs (changing a salt form, a crystalline structure, or dosage form) and claim a fresh patent, extending their monopoly without contributing genuine innovation.

The landmark case that brought Section 3(d) global attention is Novartis AG v. Union of India (2013). Novartis sought a patent for a modified crystalline form of imatinib mesylate – the active compound in its cancer drug Gleevec. The company argued the new form was a separate invention because it had improved bioavailability. The Supreme Court of India disagreed. It held that improved bioavailability does not automatically translate to improved therapeutic efficacy, and that the modification did not meet the bar set by Section 3(d). The patent was refused.

The judgment was significant not just for its outcome, but for what it said about India’s approach to innovation. Section 3(d) was described as a uniquely Indian instrument of public health policy – one that interprets “efficacy” to mean therapeutic efficacy, placing a high, data-driven burden on applicants seeking patents for modifications of known substances. The ruling sent a clear message: India’s patent law distinguishes sharply between genuine pharmaceutical innovation and the repackaging of prior discoveries.

The gene patent debate: a live tension 🔗

One of the sharpest contemporary flashpoints for the discovery-invention debate involves genetic material. Is an isolated DNA sequence a discovery or an invention? The answer has significant implications for biotechnology research, medical diagnostics, and drug development.

In the United States, the Supreme Court addressed this in Association for Molecular Pathology v. Myriad Genetics (2013), holding that naturally occurring DNA sequences are unpatentable discoveries, while synthetic complementary DNA (cDNA) sequences created in the laboratory may qualify for patent protection. In India, Section 3(c) and Section 3(j) of the Patents Act exclude the discovery of any living thing or non-living substance occurring in nature, as well as plants and animals in whole or in part, from patentability. However, biotechnological innovations involving sufficient human modification may still qualify.

The principle at work here is consistent with the rest of the framework: nature’s creations belong to the public domain. Human-engineered modifications, processes, and applications – where genuine inventive effort exists – may be protected.

The public interest dimension: why balance matters 🔗

Keeping scientific discoveries in the public domain is not anti-innovation. It is the foundation on which all future innovation is built. Every pharmaceutical researcher, every biotechnologist, and every engineer works on top of centuries of accumulated public-domain knowledge. Patent protection for specific applications provides the economic incentive to invest in converting that knowledge into products and processes that can be commercialised and scaled.

The problem arises at the extremes. If patent protection is too narrow – if only purely novel processes with no connection to prior knowledge qualify – innovation will be underfunded. If protection is too broad – if companies can effectively patent scientific discoveries by wrapping them in thin application claims – the public domain is gradually hollowed out, and access to essential knowledge becomes subject to private gatekeeping.

WIPO’s analysis of India’s patent system notes that the price of any patent monopoly is mandatory disclosure – the patentee must publish the details of the invention so that when the patent expires (typically after 20 years), the knowledge enters the public domain. This disclosure-for-monopoly exchange is the fundamental social contract of patent law. It ensures that even private rights ultimately serve a public purpose.

Navigating the duality: strategies for researchers and innovators 🔗

For researchers, scientists, and innovation professionals working in India, the practical challenge is understanding how to position their work correctly within this framework. A few principles help:

Publish the science, protect the application. Like Pasteur, the most effective strategy is often to establish scientific priority through publication while simultaneously filing a patent application for the specific industrial application. Provisional patent applications filed before publication can preserve both options without sacrificing either.

Document the transformation. Patent applications succeed when they clearly articulate what human intervention added to a natural discovery. The application must demonstrate not just what was found, but what was engineered – and why that engineering is novel, non-obvious, and industrially applicable.

Understand Section 3 before you invest. For pharmaceutical and biotechnology researchers in India, a thorough understanding of Sections 3(c), 3(d), and 3(j) before beginning a development programme can prevent costly patent rejections later. The exclusions under the Indian Patents Act are specific and carefully drawn, and navigating them requires legal strategy, not just scientific achievement.

Consider alternatives where patents fall short. Where a discovery cannot be patented but has commercial value, other IP tools – trade secrets, know-how licensing, copyright in documentation – may offer partial protection. Public-private partnerships and open innovation models also provide frameworks for commercialising discoveries while maintaining broad access.

The line between scientific discovery and patentable invention is not always clear. But the underlying principle is: nature belongs to everyone, and human ingenuity – when it genuinely adds something new and useful – can be rewarded. Louis Pasteur understood this intuitively in the 1860s. India’s Patents Act, with its carefully calibrated exclusions and its landmark judicial interpretations, embeds exactly this understanding into law.

What do you think? Given that AI systems are now independently generating novel scientific insights, does the discovery-invention distinction still make intuitive sense – or does it need to be fundamentally rethought? And in a country like India, where access to medicines and essential technologies is a pressing public concern, is the current balance between public domain and private patent rights calibrated correctly?

References

1. https://www.wipo.int/patent-judicial-guide/en/full-guide/india
2. https://en.wikipedia.org/wiki/Pasteurization
3. https://www.sciencehistory.org/education/scientific-biographies/louis-pasteur/
4. https://prologue.blogs.archives.gov/2023/08/02/louis-pasteur-and-the-science-of-beer-making/
5. https://thelegalschool.in/blog/section-3-indian-patent-act
6. https://www.rkdewan.com/blogs/patentability-of-natural-discoveries-in-india/
7. https://thelegalschool.in/blog/patentability-criteria-in-india
8. https://en.wikipedia.org/wiki/Novartis_v._Union_of_India_%26_Others
9. https://www.drugpatentwatch.com/blog/indian-pharmaceutical-patent-prosecution-the-changing-role-of-section-3d/
10. https://www.wipo.int/patent-judicial-guide/en/full-guide/india/6.1
11. https://depenning.com/blog/non-patentable-inventions/