Is it Possible to Patent Algorithm?

Till date, the Indian Patent Office has granted 200 software patents. With the recent changes in the Computer Related Inventions (CRI) guidelines, the applications for software patents is likely to increase, which would directly affect the number of patent litigations.

The speed of innovation in the field of computer, telecommunication and internet-based services is increasing at a very fast pace. Thus, the patent system around the globe aims to achieve a balance between promoting the innovative environment and providing protection to the innovators.

Appropriate protection for the inventions in the domain of computer-related software is constantly aimed by the innovators.

For instance, if a new novel invention is created but is not protected through patent, there is a high chance that someone else will exploit the invention commercially.

A paradigm shift in the field of technology can be seen and the trend to use software and mobile application is on the rise which has led to a new emerging field - Internet of Things(IoT) or Cloud Computing.

Computer Related Invention broadly falls into:

  • Method or process
  • System or Apparatus
  • Computer Programme Product

What is a Software Patent?

A Software Patent is not defined in the Indian Patent Act,1970. However Indian manual for Patent defines it as an invention which involves the use of a computer software programme or any apparatus that are used through the means of computer programs.

More on: Law on Software Patents Protection in India

What is an Algorithm?

A mathematical algorithm is a procedure for solving a given mathematical problem, commonly applied in the field of the computer software-related inventions.

Simply put, an algorithm is a well-defined procedure that helps or allows the computer to solve any given problem.

Patentability of Algorithm

The Indian Patents Act prohibits protection of mathematical methods, business methods, algorithms and computer programme 'per se' from the ambit of patent protection.

However, the recent publication of CRI guidelines issued for examination procedure of software patent was completely reversed. As per the Act, the position on the patentability of software is firm - no patent can be granted to invention relating to computer-related Inventions.

The guidelines set a parameter that computer software, mathematical methods and algorithms can receive patent protection if:

  • the contribution is not solely based on the computer programme.

  • the claim for the invention is not completely for business method or algorithm or mathematical method the application.

  • the invention completes other basic requirements of patentability.

Also Read: Documents Required for Patent Registration

Tips And Traps

The division in the patentability of an invention by the Patent Office has not stopped many companies and individuals from seeking a grant of patent protection for algorithms and other software innovations.

Following tips can be followed to claim protection for algorithms:

  • Filling description of the hardware along with the AI algorithms
  • Use claim for the working method of the device which uses an algorithm
  • Withhold yourself from focussing completely upon the codes and the algorithms.

Good drafting techniques should be employed by you or by the patent attorney while working on the claims of the computer-related invention.

What to do if Patent Law's Distinction is Unattainable?

Not all type of the computer-related and software-related inventions are eligible for patent protection.  A CRI must complete the factors used in determining the patentability as well as the disclosure of the invention that is made in the specification should meet the substantive standards as well.

So, the person applying for the patent must be careful while filing the application with the patent office.

In many countries like India, copyright protection is provided to computer programs. The advantage of obtaining copyright protection for your invention is in the simplicity of the protection provided. Moreover, with the Berne Convention, the applicant is able to protect his algorithm in 151 countries that are party to it.

Hence, comparing both the intellectual property protection, copyright provides a relatively long period of protection, which last up to 60 years after the death of the coder or author whereas in a patent application it is for 20 years from the date of application.

However, Indian Copyright Law lays down condition that the software obtaining copyright protection has to follow:

  • Should not lead to certain technical effect and is not computer programme 'per se'. As, a computer software that involves technical effect is protected under the Indian Patent Act,1970.
  • Sufficient skill and effort must be put into the work apart from the fact that it should be original.
  • The programme must first be published in India.

Read More: What is "Patent in Addition" in India?

Examples of Software Patent in India

Facebook

Facebook sought a grant of the patent for a method providing access to users profile data maintained by the company for a third-party application. The company was granted a patent on 25th April 2017.

Google

On February 2005, the company sought patent protection for "a method of phrase identification in information retrieval system". The claim in the following invention included mathematical claim. Google, however, contended that it is a technical solution to the end product.

The Patent Office granted a patent for the following invention based on the contentions filed.

Accenture

Accenture sought for the method that generates a data mapping document. The patent application for the invention stated that - 

The technical solution to a technical problem of the need for a data document design system and design tools that addresses one of the most important technical challenges faced by databases systems is data migration

The company was granted patent protection in May 2013.


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