The calibrating role of the inventive concept: a comparative analysis of subject-matter eligibility in India, the United States, and European Patent Convention framework]

Abstract

Patent systems distinguish ineligible principles from eligible applications using distinct doctrinal devices. This doctrinal, comparative study examines the US ‘inventive concept’, the EPC’s ‘technical character’ (Art. 52), and India’s Section 3 exclusions read with ‘technical effects’. Applying structured content analysis to 25 primary sources (statutes, judicial decisions, and guidance), double-coded (κ = 0.84) and framed by Lijphart’s most-different-systems design, it develops a two-stage ‘calibrated threshold’ model (categorical filter then calibration), operationalised via four criteria – specific technical problem solving, non-pre-emption, tangible output, and non-conventional implementation – and tested on three hypothetical claims. Findings reveal functional convergence rather than doctrinal identity: all filter categorically and calibrate, but devices differ in source, timing and outcomes. Divergence is sharpest for diagnostic/AI claims – likely failing in the United States but surviving under the EPC and in India. India’s Section 3(k) uniquely lacks an ‘as such’ qualifier, creating friction absent elsewhere; no system is uniformly permissive. The model provides a workable analytical lens, with the extension to other systems remaining open. The article advocates coordinated examination guidance to reduce applicant uncertainty, rather than substantive harmonisation of TRIPS-preserved policy choices.