Is a Method of Massaging Patentable subject matter?
First Publication Date: 12th January 2010
This post is in furtherance of a question posed by one of my students at NLSIU. The question was – “Can a method of massaging be patentable in India?”. He apparently saw a massage centre stating that they have patented their massage methods.
In my opinion, a process of performing a massage that is not related to treatment of a disease or disorder is patentable in India provided it satisfies the industrial applicability, novelty, inventive step and specification requirements. There is no provision under the Patents Act that prohibits patentability of a massage method that does not amount to a medical method. If a massage is meant for curing a disorder or addresses a health concern, it is not patentable subject matter because Section 3(i) provides that any process for medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings is not patentable. However, other massage methods are patentable.
To elucidate this with an example, a method of carrying out a massage in order to treat a muscle injury would not be patentable because such a massage would be considered to be a medical method under Section 3(i) but a massage process for relaxation or pleasure or for cosmetic purposes would be patentable because it is not a medical method. Having said that ,it may be argued that any kind of massage is meant for maintaining health and therefore, would fall within section 3(i) and therefore, would not be patentable.
As there is no case law that elaborates the scope of Section 3(i), I performed a search on the available patent resources in India to check if any patent had been granted with respect to a massage method but there were no hits. I therefore, performed a search for UK patents because the patent provisions in UK are similar to those in India, Indian draft patent manual borrowed quite a few provisions from the UK Manual and Indian Patent Office follows quite a few practices of the UK Patent Office. Based on precedents with respect to patent grants, it can be said that the Indian Patent Office would most probably follow the UK Patent Office Practice relating to grant of patents when there is a dearth of case law with respect to specific patent provisions that are similar in both laws.
The UK Patents Act provides under section 4A(1) provides that a patent will not be granted for the invention of
(a) a method of treatment of the human or animal body by surgery or therapy, or
(b) a method of diagnosis practised on the human or animal body.
The provision is quite similar to Section 3(i) under the Indian Act and as Indian patent office more often than not follows the UK Patent Office, we can say that the Indian Patent Office would most probably grant a patent over a massage method if a similar patent is granted by UK Patent Office.
On performing the search, I found a few patents that were granted in UK with respect to massage methods. I am providing the abstract of one of such patents here for your reference:
Title: METHOD OF MASSAGE
Patent/Publication Number: GB2449137A
Inventor Name: Badger, Elizabeth Anne
Intl. Class: A61H000700Intl. Class: A61M002102ECLA (main): A61H000700
A person P (client) is receiving a face massage in block A whilst music is playing in block B and whilst a fragrance or aroma is introduced into the atmosphere in block C. Block D represents vanous products that are being used in the massaging process. Blocks A,B,C are linked by chain dotted lines indicating that they are all theme related to a particular country in order to provide a ‘virtual’ experience of that country. Once the person or client has been massaged for an appropriate amount of time, the theme changes to a different contrasting country where the music, fragrances, and massaging products and massaging technique are all changed to suit that country. Any number of country changes along with appropriate change of music, aroma, temperature and massaging products and different massaging techniques may be provided. The grant of massage method patents by the UK Patent Office fortifies my opinion that a process of massaging, which does not amount to a medical method is patentable.Having said that, it would be interesting to debate on whether such methods should be allowed to be patentable?
Please note here that I have not reviewed the UK case law with respect to the interpretation of the scope of patentability of medical methods, which is relevant and would be done in my subsequent posts.