IP Strategy for India's Green-Hydrogen and Electrolyser Technologies

Introduction : The recently approved National Green Hydrogen Mission of India, in January 2023, involves an expenditure of ₹19,744 crore and a target of achieving an annual production of five million tonnes of green hydrogen by 2030, enabled by around 125 GW of renewable capacity.

Almost all of this money flows through the Strategic Interventions for Green Hydrogen Transition scheme, whereby Component I alone provides ₹4,440 crore to develop the capability to produce electrolysis equipment within India, through the Solar Energy Corporation of India in rupee per kilowatt funding.

For all of the startups and research organisations that are competing to access such funding, the engineering challenge is well-known: improving membranes and electrodes, catalysts that can reduce the platinum group metal content while maintaining the performance, electrolyser designs that can tolerate intermittent supply of renewable energy, and controlling systems that maintain efficiency under intermittency. The issue that often goes unnoticed, until it's too late, is that nearly each one of these inventions lies very close to patentability traps, unique to Indian law namely Section 3(d) for catalyst compositions, Section 3(k) for control algorithms, and a foreign filing license requirement for any inventor unaware that filing in other countries requires prior consent. This article works through what is patentable, what a funding agreement's IP clause typically requires, how a public pilot demonstration can quietly destroy novelty, and how to sequence international filing so the portfolio survives contact with export markets.

Legal Provisions

Section 2(1)(j) of the Patents Act, 1970 defines "invention" as a new product or process involving an inventive step and capable of industrial application a definition broad enough to cover an electrolyser's stack design, a catalyst formulation, and a hydrogen-production process alike, provided each independently clears the novelty and inventive-step bar.

Section 2(1)(ja) defines "inventive step" as a feature involving technical advance, or economic significance, or both, that is not obvious to a person skilled in the art — the test that separates a genuine electrolyser innovation from an incremental tweak.

Section 3(d) bars a patent on "the mere discovery of a new form of a known substance" unless it results in enhanced efficacy of that substance. Though litigated mainly in pharmaceuticals, the provision is not limited to medicines on its face, and a new crystalline or nanostructured form of an already-known catalytic material — a new polymorph of a perovskite oxide, say — can face the same objection unless the applicant shows the new form performs measurably better.

Section 3(k) excludes "a mathematical or business method or a computer programme per se or algorithms" — directly relevant to electrolyser control systems, where software manages current density, temperature and gas purity in response to fluctuating renewable input, and an examiner may read the claim as a bare algorithm unless it is tied to a specific technical effect.

Section 10(4) requires the complete specification to describe the invention fully and disclose the best method known to the applicant — a real constraint for electrolyser process claims, which typically need operating parameters (current density ranges, electrolyte concentration, temperature windows, catalyst loading) spelled out in enough detail for a skilled engineer to reproduce the claimed efficiency gain, not just asserted in general terms.

Section 31 offers a narrow, specific exception to anticipation: an invention displayed at a government-notified exhibition, or described in a paper read before a learned society, is not treated as anticipated provided the application is filed within twelve months of that disclosure. It is not a general grace period — any other public disclosure, including an ordinary pilot demonstration or a conference talk that does not fit these categories, can defeat novelty outright.

Sections 29 and 30 separately provide that disclosure to the government, or to a person authorised by the government to investigate the invention, does not count as anticipation — relevant where a funded pilot project involves sharing technical data with MNRE or SECI under confidentiality.

The 2024 amendment to the Patents Rules added Rule 29A and Form 31, formalising the procedure for claiming Section 31's grace period: an applicant must now file a specific request, with the prescribed fee, disclosing the details of the earlier display or publication.

Section 39 requires an Indian resident to obtain a foreign filing license from the Controller, or to first file in India and wait six weeks, before filing a corresponding application outside India for an invention made in India — a rule squarely aimed at founders tempted to file first with a US or European patent office because prosecution feels faster there.

Section 40 makes the consequence severe: an Indian application for an invention filed abroad in contravention of Section 39 is deemed abandoned, and Section 118 separately makes the contravention a criminal offence.

Legal Analysis: What Is Actually Patentable Here

The technical areas within green hydrogen innovation seem to fall into four categories, and each one poses its own patentability challenge. Electrolyser hardware technology (bipolar plates, membrane electrode assembly, gas diffusion layer, stack configuration) appears to be the most straightforward one as a mechanical and material invention in this field will be subject to the usual patentability criteria of novelty and non-obviousness under Sections 2(1)(j) and 2(1)(ja),4 which do not exclude any inventions in the absence of being mere rearrangements of known parts retaining their functions.

The issue of catalyst chemistry poses the biggest challenge with Section 3(d). A novel catalytic substance may be granted a patent in the usual way, however, a novel structure, particle size or crystalline form of an old catalyst like iridium oxide, nickel iron layered double hydroxides, platinum carbon catalyst, requires a demonstration that this new structure exhibits enhanced efficacy, which should show increased current density, over potential or durability, rather than just structural novelty.

Control and monitoring systems are where Section 3(k) becomes the live issue. A claim reciting only a sequence of steps for adjusting electrolyze parameters risks being read as an algorithm; the safer path, drawn from how Indian courts and the Patent Office treat computer-related inventions generally, is to tie the claim to a specific technical effect — a measurable improvement in hydrogen purity, energy efficiency, or stack lifespan achieved through a described hardware-software interaction, rather than to the control logic in the abstract.

Process patents, which concern the entire process itself, a certain combination of electrolysis, gas separation, and purification parameters, may very often be the most robust portion of an electrolyser patent portfolio, since they are the most difficult for competitors to work around without altering fundamental chemistry; but they also call for the detailed, replicable description required by s. 10(4).

Not only patentability, but freedom to operate should be equally considered. PEM, alkaline, and anion-exchange-membrane electrolyser technology is highly patented internationally by the existing players in the field, and an Indian startup company working on technology from licensed or published sources must do its clearance search before, not after, designing its manufacturing process.

Case Laws

Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC 1444

The Supreme Court's foundational statement on inventive step: a patent must represent a real technical advance over what a skilled craftsman already knew, not a mere workshop improvement or convenient rearrangement of known parts. The principle applies directly to incremental electrolyser design changes — a slightly reconfigured flow field or gasket, without more, is exactly the kind of "workshop tweak" the Court held unpatentable.

Novartis AG v. Union of India, (2013) 6 SCC 1

The Supreme Court upheld the refusal of a patent on the beta-crystalline form of a known drug substance under Section 3(d), holding that a new form of a known substance must show enhanced efficacy, not merely different physical properties. Although the Court read "efficacy" as therapeutic efficacy specifically for medicines, the underlying evidentiary discipline — comparative data showing the new form actually performs better, not just differently — is the standard a catalyst applicant facing a Section 3(d) objection should expect to be held to as well.

Enercon (India) Ltd. v. Aloys Wobben, Intellectual Property Appellate Board (revocation proceedings, 2012–2013)

In a series of revocation petitions against wind-turbine patents held by Aloys Wobben, the applicant argued, among other grounds, that claims directed to a method of controlling a wind turbine amounted to an unpatentable algorithm under Section 3(k), being no more than a sequence of rules for adjusting turbine operation. The dispute is the closest renewable-energy analogue to the electrolyser control-system question above, and a reminder that control claims in this sector are routinely challenged on exactly this ground.

Dr. Aloys Wobben v. Yogesh Mehra, (2014) 3 SCC 448

The Supreme Court held that once a party has filed a counter-claim for revocation in an infringement suit before a High Court, it cannot simultaneously pursue a separate revocation petition on the same grounds before the IPAB — a party must elect one forum. For a green-hydrogen startup building an enforcement strategy around its own portfolio, the case is a useful reminder that patent litigation and administrative revocation routes are not run in parallel, and the choice of forum needs to be made deliberately.

Practical Implications: Funding, Disclosure and Filing Strategy

Funding conditions from the government ought to be reviewed prior to the signing of the grant agreement, not after. Unlike the USA, India does not have any Bayh-Dole Act under which the institutions who receive any grant would automatically become owners of inventions developed by the use of the funds – such an act was proposed in 2008 but was never passed.

Thus, IP ownership in case of getting a grant for the National Green Hydrogen Mission depends entirely on how the terms of the funding are stated in that particular grant agreement, inspired only vaguely by the general policy of National Intellectual Property Rights Policy 2016 concerning commercialization of public funds – which means that the founders should study each line of the IP clause of the SIGHT or R&D grant.

Pilot disclosures remain the primary reason early-stage cleantech patents are lost. An exhibition of a technology at a government-organised green-hydrogen expo, the inauguration of a facility by the press, or a conference presentation may all be considered anticipatory events unless the invention is a qualifying invention under Section 31 and the application is filed within twelve months using Form 31 under Rule 29A.10 Data submitted to the government as part of the grant evaluation process, whether under an NDA to MNRE or SECI, will be safe because government disclosures are not defined as anticipation under Sections 29 and 30.

The practical guidance could not be simpler, despite being complicated by the law: file a provisional application, at minimum, prior to any pilot disclosure, and assume every award ceremony or ribbon-cutting to be a disclosure event.

International filing strategy must necessarily begin with Section 39. It would be impossible to submit an electrolyser invention by Indian origin first to the USPTO or the EPO without either a foreign filing license issued by the Controller or first filing it in India and waiting six weeks. Ignoring this rule will not only result in a defect abroad but also abandonment of the Indian patent application.

Upon getting that clearance, filing a PCT application allows maintaining the priority date across all the chosen markets EU, US, Japan, South Korea and Gulf countries being the natural destinations for hydrogen equipment exports and delaying entering the national phase up to thirty months, thus giving a startup a chance to negotiate partnerships with other companies before deciding upon entering each market.

Paris Convention priority makes it all possible, giving one year from the date of the first filing in India to file corresponding applications abroad and claim the same priority date.

The expedited examination path under Rule 24C of the Patents Rules, 2003 may be another useful option for recognized DPIIT startups; it is especially relevant in case of electrolyser and catalyst patent applications, which require expedited examination before a manufacturing traders.

The following is a realistic pathway for building a portfolio for an Indian green hydrogen startup or research institute: make a provisional application for the core technology invention or the catalyst/control process invention before any pilot or grant disclosure; obtain foreign filing license or make the Indian filing prior to talking to the foreign patent counsel; utilize the twelve-month priority period to make the PCT application and not make scattered filings early on; make a dual-layered claims strategy where broad claims which will pass the Section 3(d) and 3(k) tests along with narrow claims capturing the precise parameters which are proved in the pilot data; and go back to the IP clause in the funding agreement at each stage of funding because SIGHT grants are typically stage-based.

Conclusion

India's green-hydrogen push is creating patentable innovation faster than most founders are tracking the paperwork around it. The technology itself clears the ordinary bars of novelty and inventive step without much difficulty; what trips up Indian applicants is everything adjacent to the technology — a catalyst claim that reads as a bare new form under Section 3(d), a control system that reads as a bare algorithm under Section 3(k), a pilot demonstration that quietly anticipates the very patent it was meant to showcase, and a foreign filing made a step too early under Section 39. None of these is exotic law; all of them are entirely avoidable with a filing calendar built around the funding timeline rather than after it. For a sector this well funded and this short on runway before the first commercial tenders close, that discipline is now simply part of the engineering.

Author :- Samvidha Rastogi, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

References

1. National Green Hydrogen Mission, Ministry of New and Renewable Energy, Government of India (approved Jan. 2023; outlay ₹19,744 crore).
2. Strategic Interventions for Green Hydrogen Transition (SIGHT) Programme, Component I: Incentive Scheme for Electrolyser Manufacturing, Ministry of New and Renewable Energy (outlay ₹4,440 crore, implemented by the Solar Energy Corporation of India).
3. The Patents Act, 1970, § 2(1)(j) (India).
4. The Patents Act, 1970, § 2(1)(ja) (India).
5. The Patents Act, 1970, § 3(d) (India).
6. The Patents Act, 1970, § 3(k) (India).
7. The Patents Act, 1970, § 10(4) (India).
8. The Patents Act, 1970, § 31 (India).
9. The Patents Act, 1970, §§ 29, 30 (India).
10. The Patents (Amendment) Rules, 2024, Rule 29A and Form 31 (India).
11. The Patents Act, 1970, § 39 (India).
12. The Patents Act, 1970, §§ 40, 118 (India).
13. Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, AIR 1982 SC 1444.
14. Novartis AG v. Union of India, (2013) 6 SCC 1.
15. Enercon (India) Ltd. v. Aloys Wobben, Intellectual Property Appellate Board (revocation proceedings, 2012–2013).
16. Dr. Aloys Wobben v. Yogesh Mehra, (2014) 3 SCC 448.
17. The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 (India) (introduced in the Rajya Sabha; not enacted).
18. National Intellectual Property Rights Policy, 2016, Department for Promotion of Industry and Internal Trade, Ministry of Commerce & Industry (India).
19. Patent Cooperation Treaty, done at Washington, 19 June 1970 (as amended).
20. Paris Convention for the Protection of Industrial Property, 1883 (as revised).
21. The Patents Rules, 2003, Rule 24C (India) (expedited examination).