Everything About Software Patent Registration in India

Intellectual Property protection in computer software has been highly debated. Many countries have passed directives regarding the patentability of the computer-related inventions. Still, the world has a divergent view over the legalities regarding enforcement of software patents.

Introduction

In the past few decades, information technology is on the rise and is considered a vital tool in the development of scientific progress in India.

The core element of information technology is its computer-related components such as software, its hardware and other telecommunication equipment involved.

The inventors have been aspiring to obtain patent protection for their invention for a past few years; seeing this Intellectual property office came up with few guidelines regarding the computer-related invention.

What is a Software Patents?

There is no set legal definition for Software Patents. The Foundation of Free Information Infrastructure (FFII) defined software patents as, "patents related to the performance of the computer-based software programme."

Law on Software Patent Protection

In the current information society, protection of knowledge and invention is of utmost importance. This is the reason that computer software enjoys dual protection under the Indian patent law.

Copyright law can protect specific codes that the programmer writes such as CSS or HTML coding. Whereas, Patent, on the other hand, prevents others from using or selling the claimed invention.

The question of maintaining balance among the development of product and conservation of right of the inventor has been the bone of contention for the Patent Office.

The position of Software patent in the current Indian patent environment is different from that of other jurisdiction such as Europe and Canada. Software Patent is considered as non-patentable subject matter in India under Section 3(k) of the Patents Act, 1970 unless it is patented along with the hardware. 

Also Read: Types of Patent Infringement: Litigation and Penalties in India

TRIPS and Software Patent

Section 3(K) of the Indian Patents Act restricted computer related Patent algorithms from obtaining patent protection before the Indian Patent Act (amendment), 2002. The following conditions were made part of the international obligations imposed by TRIPS Agreement, which India had to adopt after they ratified the Agreement. 

  • Article 27.1 of TRIPS specifies that all the invention must enjoy patent protection without any discrimination based on the field of technology the invention relates to.
  • Article 10 of TRIPS states that the open code and source code receives protection under the Berne Convention. The issue is that TRIPS mentions protection for open and source codes under copyright law.

Software Patents in India

Despite adopting the TRIPS Articles on Patents, software patent created a controversial issue in India while determining patentability of software patents. The issue was that the TRIPS Articles were open-ended leaving the question regarding patent protection for software unanswered.

Read More: What is a Patent Prosecution?

Current Status of Software Patents in India

The 2002 Amendment of the Patents Act included the term "Per Se" along with the term computer programme. With the addition in the provision, 3 (k); patent protection for software was made possible only if filed along with hardware that needed to have certain novel features.

Simply put, software-related inventions are not protected by themselves in India. However, a patent can be obtained for a software-related invention if it is both inventive and is capable of industrial use along with innovative hardware.

More on: What is Patent of Addition?

Why Seek Protection through Software Patent?

Patent protection is a monopoly right over the invention, which gives power to the inventor or the applicant to stop others from using, selling or manufacturing the same invention for the tenure of the patent protection.

Software algorithms or programme are commonly protected through copyright protection. Computer software in India is treated as literary work as per section 2(o) of the Copyright Act.

The problem with copyright is that it only protects the expression of an idea and not the product itself. Hence the end result of the software programme can be replicated through some other set of codes.

Hence, seeking patent protection is the only way to safeguard the entire software programme, including the end result. 

Guidelines for Computer related Invention

Computer-related guidelines were first issued in the year 2015; it was done to remove the inconsistencies associated with the grant of a software patent. The guidelines issued directives to the Patent Office to allow a software patent.

Open source activists profoundly opposed the directions due to which the 2015 guidelines were retracted, and new guidelines were issued that prohibited software patent as well unless they were filed along with novel hardware as well.

Following Tests Should be Applied for CRI's

  • If the claims are in combination with the hardware, the examiner should determine the patentability of the invention through other steps.
  • If the invention seeking patent protection solely contributes towards computer programme, the claim for protection must be denied.
  • Software patent in India can be filed along with hardware only. The primary requirement is that both the equipment as well as the software needs to be novel.

Examination of CRI Application

The examination procedure for Computer-Related Invention is similar to that of any other patent. The invention must fulfil the following criteria for obtaining protection.

  • Novelty

Novelty means that the invention must not be anticipated or published anywhere around the world. If any publication has published anything related to the invention prior to the grant of the patent application will be immediately rejected by the patent office.

  • Industrial Applicability

The invention must have applicability in any industry to be considered the patentable subject matter.

  • Inventive Step

The invention must include some technological advancement or should include economic improvement of some kind. 


Patent