Patentability of software in India:

The importance of software in today’s world cannot be undermined as more and more business these days are dependent on technologies. So there is an urgent requirement to grant legal protection to the IP in software’s. The article aims to give an overview of the patentability of software’s in India.

The TRIPS Agreement in Article 27 states that Patents shall be available for any inventions, whether product or processes, in all field of technology provided they are new, involve an inventive step and are capable of industrial application. The TRIPS Agreement clearly states “in all field of technology” which should also include computer software. But the TRIPS Agreement has been interpreted by different countries in different countries ways. The 2010 WIPO studies list that 64 countries which have excluded software from patentable subject matter.

The patentability of software in India has always been a topic of major public discussion subjected to which the parliament brought Amendment to the Patents Act.

The Indian Patent Act, 1970 in sec 3(k) states that “a mathematical or business method or computer program per se or algorithms” are not Inventions and therefore not patentable. This makes us think about the word “Per se” used in section 3(k). According to Webster’s Encyclopaedia dictionary, the term per se refers to “by, of, for, or in itself”. Even the parliamentary committee offered some clarity to the word “per se” by stating that sometimes the computer program may include certain other things, ancillary thereto or developed thereon. The invention is not to reject them for grant of patents if they are inventions. However computer programme as such are not intended to be granted patent. Furthermore the latest guidelines for examination of computer related inventions (CRI’s) which pertain to patentability of computer programmes provides further clarity in this regard. In practice a tangible component must accompany the invented software to make it patentable. So if the invention is not software per se it shall qualify for Patent protection.  There has been various cases where software Patents had been granted in India. In Accenture Global Service GMBH v. Assistant Controller of Patents & Design and the Examiner of Patents where applicant sought for a patent on a method to generate a data mapping document. The objection against the method’s technical effect being unidentifiable, the applicant submitted that the present claims recite “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 database systems is data migration.” After analyzing the inventions on merits, the Patent Office observed that the invention is not software per se, it is rather a system having web-services and software and thus, is not falling in the category of section 3(k) and patent was granted in May 2013.

In 2009, Facebook sought a patent on a method “for generating dynamic relationship-based content, personalized for members of the web-based social network”. The objections against the grant were ‘the method being nothing but an algorithm implemented through software thus falling under Section 3(k) and being non- patentable.’ The applicant contended that section 3(k) was not applicable in this case because the invention “implements a technical process and has a technical effect” and further went on to explain the intricacy of the method. These amendments to the claims satisfied the Patent Office’s objections and thus it granted the patent in February 2017.

Another patent was granted to Facebook on 25thApril 2017 “for a method of providing access to user profile data maintained by Facebook to third-party application”. Facebook submitted that “the present invention included hardware limitation and provided technical improvements and benefits like checking privacy setting associated with the user profile and based on the privacy setting the access is provided to the third-party application and the third-party application personalizes the user content data.” The Patent Office concluded that this doesn’t fall under the purview of Section 3(k), and duly granted it a patent.

In Feb 2005, Google sought for a patent on an invention titled, ‘phrase identification in an information retrieval system’. One of the claims disclosed it to be a basic mathematical algorithm with the logical steps thus falling under section 3(k) of the Patents Act, 1970[18]and therefore not being patentable. However, Google reasoned that its invention is not an algorithm or a computer program per se, “but provides a technical solution to a technical problem of how to automatically identify phrases in a document collection”. It claimed that the technical solution i.e. the end product which is an index, stored in a memory consisting of related valid phrases, is inventive. On hearing the above submissions, the Patent Office concluded that it is “a technical advancement over the prior art” and thus granted it the patent in May 2017.

In 2009, Apple applied for a patent on a ‘method for browsing data items with respect to a display screen associated with a computing device and an electronic device’. The objections against the invention were that it was merely a software program and thus falling within the scope of computer programs per se i.e., under the provision of section 3(k) of the Act. Apple submitted that the method “although the steps of the method can be performed by means of software, the method constitutes a practical application of this computer software to produce a useful result bringing an improved technical effect while presenting advantages and overcoming drawbacks of hitherto known techniques.” Accepting this submission, the Kolkata Patent Office granted the patent.

The copyright law in India also offers protection to both software’s and the computer programmes. But patent protection for the software plays a very vital role as under copyright it limits the scope of safety of the software.

The protection under copyright can be enforced only when the source code of the software is literally copied. However it does not protect the invention. Therefore granting Patent to software is very crucial. Unlike USA who is very liberal in granting patents to software’s, the IPO grants to those computer related inventions which are based on technical process.

Promoting creativity is the reasoning behind refusing patents for software per se in India. The bulk of technological innovations would be owned by a handful of corporations if technological, per se, is granted patent. In a developing nation like India, where programmers must be granted the freedom to invent, this scenario is unthinkable. Programmers or coders must have access to open source software to build better software. In keeping with this spirit, without hardware applicability, Section 3(k) does not authorise software patents. The Government has introduced guidelines to this end that help determine the degree or rather the manner in which software innovations are patentable.

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