Section 3(k) of the indian patents act, 1970

Explaining Section 3(k) of the Patents Act, which excludes from patentability a mathematical or business method or a computer program per se or algorithms, can puzzle even the most experienced practitioners because of the ambiguous language used in the Act. This article attempts to explain the scope of Section 3(k) in light of judicial pronouncements and guidelines issued by the Office of Controller of Patents.

Section 3(k) of the Act states no patent on a mathematical or business method or a computer program per se or algorithms. However, the clause's word ‘per se’ implies that there is no blanket restriction for all such inventions.

To understand Section 3(k), we shall break the definition into individual components and analyze them in light of judicial pronouncements and guidelines issued by the Office of Controller of Patents (“Guidelines”).

Claims directed as Mathematical Methods:

Mathematical methods are not defined under any statute; however, they include a method of calculation, formulation of equations, finding square roots, cube roots, and other similar acts of mental skill. As per the Guidelines, claims directed as mathematical methods are not patentable as they are purely abstract or intellectual and have no practical application. However, inventions with a presence of mathematical formulae to clarify the scope of the invention are not excluded under this section.

In Electronic Navigation Research Institute vs. Controller General of Patents & Ors. (OA/26/2009/PT/DEL), the IPAB held that “inventions that propose and claim a technical solution that is beyond a “mathematical method” have a higher probability of having a patent granted.”

Claims directed as Business Methods:

The term "business methods" has been interpreted to involve a whole gamut of activities in a commercial or industrial enterprise relating to the transaction ofgoods or services. As per the Guidelines, if the subject matter of the claim is essentially about carrying out business/ trade and/or a method of buying/selling goods through the web, the same should be treated as a business method and is not patentable.

The IPAB in Yahoo vs. Controller of Patents & Rediffcom India Limited (OA/22/2010/PT/CH) held that “where technical advances are only a manifestation of a core business method, such advances shall not accord any advantage to the patentee in the allowance of the patent.”

Claims directed as Computer Programme per see:

The term "computer programme" has been defined in the Copyright Act, 1957 under Section 2(ffc) as “computer programme means a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.” The term ‘per se’ has been included in this clause to ensure that inventions that are developed using computer program but have in addition to their certain other features or technical advancements are not rejected under this clause.

In Accenture Global Service GMBH vs. Assistant Controller of Patents (OA/22/2009/PT/DEL), the Controller of Patents allowed registration of an invention that included software on the grounds that “the invention is not a software per se but a system which has the effect of improving the web services and software.”

Claims directed at Algorithms:

The term “algorithm” is not defined under any statute. However, the Oxford Dictionary defines the term as “a set of rules that must be followed when solving a particular problem.”

As per the Guidelines issued, all types of algorithms including but not limited to, a set of rules or procedures or any sequence of steps or any method expressed by way of a finite list of defined instructions, whether for solving a problem or otherwise, and whether employing a logical, arithmetical or computational method, recursive or otherwise, are excluded from patentability.

From the above discussion, it is clear to overcome the restriction mentioned in Section 3(k) of the Act. The invention should show some technological advancement and not merely be a mathematical or business method, computer program, or algorithm. To ensure that such inventions are also not rejected under this section, you must draft the patent claim carefully.

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