Computer Related Inventions consists of inventions which involve the use of computers, computer networks or other programmable equipment and include inventions which require computer programme or programmes for operating.
Not all types of software-related innovation can enjoy patent protection. To be eligible for patent protection, an invention must meet several criteria. Thus, mere economic theories, methods of doing business, mathematical methods or computer programs as such are not patentable “inventions”.
As per the Guidelines for Examination of Computer-Related Inventions by the office of the Controller General of Patents, Designs, and Trademarks, the computer Related Inventions are defined as those that involve:
- The use of computers
- Computer networks
- Other programmable apparatus
- Inventions with one or more features that are realized wholly or partially by means of a computer programme
Software Patents Are Allowed in India?
Software by itself is not patentable in India. However, software can be patented if it is part of an invention that is both inventive and capable of industrial use.
The 2016 computer-related invention guidelines appear to disregard the decision of the Delhi High Court in Ericsson, as well as the intention of the joint parliamentary committee in endorsing the amendment to Section 3(k) in the Patent Act. The new guidelines may discourage software companies from investing in India, since a major chunk of their patent portfolios could be unpatentable in the country. In the long run, with no patent protection for these portfolios, a surge in software piracy may also result. Although it is being appealed, the Delhi High Court decision in Ericsson was seen as a positive step for the patenting of computer-related inventions. However, the final computer-related invention guidelines appear to have undone the court’s decision. Despite this, the fate of computer-related patents is arguably not sealed and may yet be clarified by the courts.
Requirement of getting software patent
In order to obtain a patent in India, an invention must fulfill four criteria:
Industrial Applicability means capable of being made or used in an industry.
Inventive Step means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
Novelty – “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art.
Patentability exclusion for software or computer program:- Mathematical business method computer programme per se or algorithms.Patentability exclusion for software or computer program explains specifically subject matter which is novel/new product or process, with an inventive step and capable of industrial application qualify for patent if it falls under Section 3(k) of the Indian Patents Act, 1970. Nevertheless, not all computer-related invention falls under Section 3(k) or that computer-related inventions which are outside the scope of Section 3(k) are patentable in India. For instance, if the main essence/contribution/ function of the proposed invention lies solely in the computer program, the invention is not patentable as per Section 3(k) of the Patents Act, 1970. Conversely, if the main essence/contribution/function of the proposed invention lies in the computer program as well as hardware, the invention does not fall under Section 3(k) and shall be judged on other criteria of patentability.
Why not Software Patent?
The patents for software per se are not allowed in India so as to allow the software programmers or coders to access the open source software. In a developing country like India, in case if the software is patented, it restricts the programmers or coders from accessing the patented programs. Accordingly, Section 3 (k) does not allow patents related to software without any hardware applicability. It is important to note that Section 3(k) does not intend to fully ban the software patents in India. It only explains that computer programs per se are not patentable. The phrase computer programs per se’ has not been defined and it has therefore been the source of some ambiguity. To this end, the Government passed some Guidelines that help to define the extent or rather the manner in which software inventions are patentable.