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Everything about Software Patent in India

India is a hub of information technology, with an unprecedented boost in the development of innovative technologies. With breakthrough technological inventions and development of software in past years, it became paramount to protect the innovation and safeguard the interest of inventors.
Written by:
Shivi Gupta
Published on
24-Jul-18

India is a hub of information technology, with an unprecedented boost in the development of innovative technologies. With breakthrough technological inventions and development of software in past years, it became paramount to protect the innovation and safeguard the interest of inventors.

Fortunately, patent laws in India help in protecting one’s invention and software are no different. The Indian Patent Office has laid out Computer Related Invention Guidelines to streamline the process of obtaining a software patent in India. A patent an exclusive right granted to a person who has invented some new and useful article. an improvement of existing article or a new process of making some article. Patent laws in India ensure that no other person can make, use, distribute or sell any commodity which uses this product or process by granting patent rights to the inventor.

The Indian Patents Act, 1970 governs all aspects of the patent in India, including what can and cannot be patented, guidelines for obtaining a patent, procedure for obtaining a patent, tenure of a registered patent, etc. Section 3(k) of the Indian Patents Act, 1970 reads that ‘mathematical or business method or a computer programme per se or algorithms’ do not fall under the category of items that can be patented in India. Therefore, the Patent Office has been rejecting the majority of patent applications for software patent in India, even though they are high on innovation. Copyright registration is commonly used to protect software in India. Computer software and programs can be registered as a literary work as per Section 2(o) of the Copyright Act, 1957. While applying for copyright registration for a software, the ‘Source Code’ must be submitted along with the application to the Copyright Office.

 

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However, the copyright laws in India protect only the 'specific code' and does not provide any protection to the idea behind that code. A software copyright in India does not restrict the creation of a different code with similar functionality and idea, which is protected by obtaining a patent for the programme.  The Indian Patent Office (IPO) recently modified the Computer-Related Inventions (CRI) Guidelines in June 2017 by removing the requirement of ‘novel hardware’ to get a software patented in India. The amended guidelines have deleted one of the three steps from the test for patentability which stipulated that patents for software could only be claimed in conjunction with novel hardware. However, the requirement of some hardware remains the same to obtain a software patent in India.  The test provided the following to determine patentability of CRIs:
  • The actual contribution can be identified and the claim can be properly construed
  • The claim is denied if the contribution lies only in mathematical method, business method or algorithm
  • Check if the patent is claimed in conjunction with a novel hardware if the contribution lies in the field of the computer programme

Under the new CRI guidelines, the IPO has taken a more favourable approach towards patentability of CRIs as compared to the past. The revised guidelines are useful to patent applicants and practitioners alike. When it comes to getting a patent in India, computer-related inventions can be really tricky. It is important to clearly describe the invention in such a manner that it is easily comprehensible to laypersons. Computer software which is new, useful and non-obvious process or product combined with a physical device or physical element used to process, operate, or implement a function can be patented in India. With regards to a software patent, following types of Computer-Related Inventions can be patented in India: 

  • Method to compress or process data, video, image or audio
  • An equipment-controlling system
  • A method of improving a machine or memory operation
  • A method of improving physical, chemical, biological or electric properties of an object
  • A graphical user Interface controlling system
  • A mobile unit positioning method

However, an invention which is obvious and comes under the ambit of any of the following cannot be patented in India: 

  • An abstract idea, computer programme or code
  • An arbitrary arrangement
  • A mathematical formula
  • A simple algorithm

With the latest amendment, the IPO shall gear up to receive numerous applications from many companies and startups that have their base in software. Experts also speculate an acute decrease in the number of patent litigation that has been stalling the progress of Indian software fraternity. Want to obtain a software patent in India? Talk to the best IPR lawyers in India at MyAdvo. Email us at info@myadvo.in or call now at 9811782573.