IT industry in India has witnessed tremendous growth in past decade, which resulted in inception of large IT companies and multiple start-ups. Creation of software products is the major emphasis of IT industries, and to counter the growing competition in the industry it is a must need to protect the unique innovations of software programs.
Many countries, for example USA, Singapore and Australia, favor the protection for software innovation by complying the Patent laws. However, many other countries including India and European nations comply stringent Patent laws for protection of software innovations. According to amendments, 2002 of Indian Patent Act, 1970, section 3 and section 4 specify a list of non-patentable subject matters, where sub-section (k) under section 3 states that:
“Mathematical and business methods, computer programs-per se or algorithms are categorized as non-patentable subject matters.”
Note:- Every software innovations does not fall under section 3(k), therefore, a wide range of software innovations are patentable in India as well.
While most types of software patents are disallowed, a survey done by Software Freedom Law Centre (SFLC) showed that over 350 patents were granted software or computer programs innovations in between 2009-2011, in India.
History on software patents Guidelines-
“On 21st Sept 1962, a British patent application entitled “A Computer Arranged for the Automatic solution of Linear Programming Problems” was filed. The invention was concerned with efficient memory management for the simplex algorithm, and may be implemented by purely software means. The patent was granted on August 17, 1966 and seems to be one of the first software patents.”
According to Indian Patent Act, 1970, a clear prohibition was implied on software or computer programs or mobile applications.
In 2002, the patent act was amended and according to these amendments related to the software innovation or computer programs words “per se” were introduced in the clause (k), which means any innovation in computer programs or computer software cannot be protected, in isolation. Software can be patented in combination with hardware, which means software should be in function with computer hardware wholly or partially.
If any company seeking to file a software patent application under Ordinance, 2004, it should ensure that its invention follows the three basic tests:
- Inventive steps
Further, on February 19, 2016, the Government issued new guidelines for examination of software patents in India, which specifies that: a new term ‘technical effect’ was introduced in the computer related inventions guidelines in order to further explain ‘technical advancement’ under section 2(1)(ja) of the Patents Act.
- Patentability– A three-step test is recently introduced in the final amended guidelines for determining the patentability of software-related inventions. These steps says:
- Claims should be properly construed and identify the actual contribution;
- Claims should be denied, if the contribution lies only in mathematical method, business method or algorithm;
- Claims should be provided in conjunction with novel hardware and should proceed to other steps to determine the patentability with respect to the invention, if the conjunction lies in the field of computer programs. The computer program is never patentable in isolation.
- Inventive steps– The new guidelines (for interpretation of technical advancement) states that: comparison should be done with the subject matter of invention and it should be found that the advancement is not related to any of the excluded subjects.
- Industrial applicability– The new guidelines state that patent specification must disclose a practical application and industrial use for the claimed invention wherein concrete benefit must be derivable from the description coupled with common general knowledge.