Software Patentability - in Indian Context

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Software Patentability : In Indian Context

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There is no legal or conclusive definition of a software patent. A suggested definition of software patent has
been proposed by the Foundation for a Free Information Infrastructure (FFII) as being a patent on any
performance of a computer realized by means of a computer program.
The computer software is considered as valuable property and forms a part of intellectual property. The
intellectual property regime in India is in the process of evolution. The domestic laws are modified to suit the
various needs of people which are changing in according to the international markets. There is no legal or
conclusive definition of a software patent. A suggested definition of software patent has been proposed by the
Foundation for a Free Information Infrastructure (FFII) as being a "patent on any performance of a computer
realized by means of a computer program".
Protection of Computer software is one of the most contentious issues in the field of IPR. The growing
economic significance of computers and Computer programmes gives software patents and copyrights this
controversial status. The term CP is not defined under the patent laws in India, but the Copyright Act 1957
defines CP under Sec. 2(ffc)[1].
Software enjoys dual protection under copyright and patent law, but which law prevails other depends on the
strategic advantage sought by the applicant. Copyright law protects the specific code a programmer writes, but
it does not protect the idea behind that code and it does not prevent it from being recreated with similar
functionality with different code by someone else. Patents give their owners the right to prevent others from
using a claimed invention, even if it was independently developed and there was no copying involved�. Patent
law prevalently dominates the applicant's choice over copyright because of its obvious advantages, but the
irony is that the patent law does not allow software protection. in toto[2]This paper will analyse the law with
regarding to software patentability in India and other countries and the problems regarding the software
https://www.legalserviceindia.com/legal/article-9-software-patentability-in-indian-context-.html 1/17
patentability with the help of different cases in India.
Software protection under Copyright Law Copyright was usually associated with artistic products, but today in
addition to all this copyright is now an important tool in protecting computer software. The Copyright Act
provides copyright protection for original works of authorship fixed in any concrete medium of expression. The
Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works,
distribution. It is not a necessity to take steps after the work has been created and "fixed in tangible form" for
copyright to exist. But a registration of copyright in a work is necessary to proceed with an action for
infringement of it.[3]
The original literary, dramatic, musical and artistic works, cinematograph films and sound recordings are
protected as copyrights' under the Copyright Act 1957. The description of literary work' includes the computer
programs. Thus, the computer software programs are protected as literary work[4]under the provisions of the
Copyright Act. The Copyright Act 1957 defines the computer[5]as to include any electronic or similar device
having information processing capabilities'. The Act defines the computer program' to mean 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[6]It is evident from the
above definitions that the computer program or software is protected as literary work' under the provisions of
the Copyright Act 1957. It is evident that the term computer means and includes all types of electronic devices
which are having the capability to the process of information fed into it. As such, a cell phone is a computer
which is programmed to do among others the function of receiving digital audio signals, convert it into analog
audio signal and also send analogue audio signals in a digital form externally by wireless technology[7]
Case law on copyright protection of Software: - Keeping in pace with the enhanced statutory protection to
computer programme, the Courts in India have taken a proactive role in effectively enforcing the provisions of
the Copyright Act. In a landmark Judgment the Delhi High Court has awarded damages to the tune of 1,795,000
for copyright infringement in the case of Microsoft Corporation v. Yogesh Papat[8]in this case Microsoft alleged
that the defendant, who was in the business of selling assembled computers, was loading the software in which
the plaintiff had a copyright, without a license on the hard disk of computers being sold by them. By indulging
in such activity, the defendant was infringing the plaintiff copyright financial loss to the plaintiff. The Court
passed judgment in favour of the Plaintiff and issued decree for injunctive relief, order for delivery up and
decree of damages.
Limitations: The protection under the Copyright Act is limited as it does not protect the idea behind the work,
but protects only its expression. In contrast, patent laws would protect technological ideas underlying
computer programme, even though the first mentioned computer programme is written differently.[9]
Controversy on TRIPS and software
The issue of patentability and its exclusion is a controversial issue in case of determining patentability of
advance technological patents. Article 27.1 of TRIPS species that the patent protection is available for all
inventions and patent protection is available for all inventions and patent rights can be enjoyed without
discrimination on the basis of the fields of technology. Article 27 of TRIPS does not define the exact meaning of
the term invention'. However, it mentions about patentable criteria such as novelty, inventive step and
industrial use. The same section also speaks about exclusion from patentability but it does not exclude
software or computer programme.[10]
Article 10 of TRIPS states that the source code and object code shall be protected as literary work under Berne
Convention 1971. The dispute of protection of software arises on the issues of copyright or patent protection.
The TRIPS agreement mentions the copyright protection of object code and source code. It is difficult to protect
computer software under copyright protection because of basic difference between the software and literary
work.[11]The copyright protection to software is opposed because of the behavior code dichotomy and the real
value of computer programme lies in the source code rather than the object code. Thus, the question regarding
patent protection for pure software or for its technical application or physical manifestation remains
unanswered.
Software Protection under Patent Law

Technology related patents (which are not in relation to hardware) are usually categorized as software patents
or business method patents. For example, a system or process developed by a taxi company which allows any
customer to choose a taxi which is closest to his location could qualify as a business method.
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.
TheIndian Patent Act,1970governs 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, 1970reads 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 perSection 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. 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.
Requirement of getting software patent
In order to obtain a patent in India, an invention must fulfill four criteria:
1. Industrial Applicability: - "capable of industrial application", in relation to an invention, means that the
invention is capable of being made or used in an industry[12].
2. Inventive Step:-"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.[13]
3. 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.[14]
4. Patentability exclusion for software or computer program:-Mathematical business method computer

programme per se or algorithms.[15]
Patentability exclusion for software or computer program specifically elucidates subject matter which is
novel/new product or process, having 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 computers 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 the computer program as
well as hardware, the invention will not fall under Section 3(k) and shall be judged on other criteria of
patentability.
Why not Software Patent?
The logic behind denying patents for software per se in India is to promote innovation. If software, per se, is
patented a majority of the software inventions will be owned by a minority of firms. This scenario is
unimaginable in a developing country like India, where programmers must be given the freedom to innovate.
To develop better software's programmers or coders must have access to the open source software. Keeping in
line with this spirit, Section 3(k) does not allow software patents without hardware applicability.
At this point, it is important to note that Section 3(k) does not intend to place a blanket ban on software patents
in India. It only says that computer programsper seare 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 Guidelines that help define the extent or rather the manner in which software inventions are
patentable.
Computer Related Invention Guidelines
In the absence of any guidelines on the issues of patents on computer related inventions(CRI), it was found that
while some patent offices refused to grant software patents, others were inclined to grant patents on software.
In order to remove inconsistencies related to grant of patent in India, the Controller of Patents issued
guidelines related to CRI first in 2015 (known as CRI Guidelines 2015). The gist of the 2015 guidelines was that
the patent offices in India were prohibited from issuing businessmethod patents while computer programs
could be patentable on the fulfillment of certain conditions.
The CRI Guidelines 2015 was decried by open source activists in India who claimed that the 2015 Guidelines
would adversely impact innovation by start-ups in India; they argued that the 2015 Guidelines violated section
3(k) of the Patents Act which expressly prohibited software patents. This led to the recall of the 2015 Guidelines
in December 2015 and fresh guidelines were subsequently issued in February 2016. The 2016 Guidelines
altered the earlier position to the extent that even patents on computer programs could not be granted unless
the inventor could show that the invention included a computer program “in conjunction with a novel
hardware� (also known as novel hardware requirement').
Guidelines required that the focus of the examiner should be on the underlying substance of the invention and
not the particular form in which it is claimed. The claims should be properly construed and the actual
contribution of the claim must be identified, and if the contribution lies only in a mathematical method,
business method or algorithm, the claims are to be denied. However, if the contribution lies in the field of
computer programmes, the following tests should be applied for CRIs:
1. If the claims are in conjunction with novel hardware, the examiner should proceed to other steps to
determine the patentability of the invention;
2. If the contribution lies solely in the computer programme, the claim should be denied; and
3. If the contribution lies in both the computer programme as well as the hardware in question, the examiner
should proceed to the other steps involved in assessing patentability.
Business methods continue to remain non-patentable under the 2016 Guidelines. While the 2016 Guidelines
cleared the legal ambiguity related to software patenting in India, recent trend indicates that software patents
(particularly business method patents) are routinely granted by Indian patent offices. As many as four business
method patents have been granted in India in 2017. Facebook was granted a patent (Application No.
830/CHENP/2009) in February 2017 on a method for generating dynamic relationship-based content,

personalized for members of the web-based social network.[16]
In the series of issuing guidelines the Indian Patent Office (IPO) has once again revisited the guidelines for
examination of Computer Related Invention (CRI) and issued new guidelines on 30thJune 2017. Basically, the
2017 guidelines are based on the 2016Guidelines, the test which was proposed in the 2016 guidelines have
done away with the latest one. The Revised guidelines do not expressly lay down any specific tests, indicators or
determinants on the patentability of CRIs. Additionally, illustrative examples on non-patentable and patentable
claims have also been removed.Accordingly, it may be construed that the Patent Examiner should focus on the
underlying substance of the invention and not the particular form in which it is claimed.
Latest Software Patent granted in India
In Accenture Global Service GMBH v. Assistant Controller of Patents & Design and the Examiner of
Patents[17]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.
National approaches to software patentability
In Europe, the European Patent Convention (EPC) (Art. 52(c) and 3) state that a computer program claimed such
us excluded from patentability. But an appeal by IBM (case No. T 1173/97) before the Board of Appeals for the
European Patent Office provided useful guidance. The Board stated that a narrow reading of the relevant
articles meant that not all computer programs should be excluded from patentability to comply with Art. 27 of
the TRIPS Agreement which deals with the patentable subject matter. The Board concluded that a computer
programs as such referred only to those that were non-technical in character. It also acknowledged that “it does
not make a difference whether a computer program is claimed by itself or as a record on a carrier. In other
words, as long as a computer program is technical, the medium in which it is recorded is irrelevant and is, in
fact, patentable. Given the current widespread online commercial distribution of software, this is an especially
important finding.
In the United States, patent protection for software-related inventions is limited to those on recordable media,
not to computer programs themselves[19]. This protection falls short when it comes to the online distribution
of software. Unfortunately, the Supreme Court's decision in Alice Corp v. CLS Bank[20]and some subsequent
cases have failed to provide clear boundaries for the patent eligibility of software-related inventions.
Japan's Patent Act (Art. 2(3)(i)), on the other hand, explicitly refers to computer programs as patentable subject
matter. The Act states that the claimed subject matter must be recognized as a “creation of technical ideas
utilizing the law of nature� to qualify as a patentable invention. In general, according to the Examination
Guidelines of the JPO, to be patent-eligible, a claim for a software-related invention must demonstrate that
software and hardware resource work cooperatively.
Conclusion
India's IT sector aggregate revenues of US$ 160 billion in 2017[21]. It shows the investment and R&D in the IT
sector. Software developer invests its time and money in developing a software but the Indian laws are
insufficient in protecting the work of the software developer. Patent protection is a proven means of supporting
innovation, improving living standards and boosting employment. As the Indian economy becomes ever more
digitized, with software increasingly forming the basis of innovation and business competition India cannot
afford to exclude software from patentability.
Country like China and USA, where judiciary and government have been taken step to remove the ambiguity in
the area. In India also, the government has taken step and come with the computer related invention
guidelines in 2015,2016 and 20017. Latest guidelines (2017) tried to clear the ambiguity of the software
patentability in India. The position regarding the mathematical or business program remains same being a non-
patentable subject matter.
End-Notes
[1] 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
[2] https://www.patentwire.co.in/images/Software_Patents_in_India.pdf (last updated 19/2/2018)
[3] http://legalonline.blogspot.in/2011/03/copyright-protection-for-computer.html (Last updated 18/02/2018)
[4] Section 2(o) of the Copyright Act 1957 defines the literary work as to include computer programs, tables and
compilations including computer databases
[5] Section 2(ffa) of the Copyright Act 1957
[6] Section 2(ffc) of the Copyright Act 1957
[7] Syed Asifuddin Vs. State of Andhra Pradesh, 2005 Cri L J 4314 AP
[8] 20005 (30) PTC 245 Del.
[9] Vikram K Raj and Gowree Gokhale , Incomplete

Laws'http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Software_Patents_in_India.pdf(Last updated
18/02/2018)
[10] Ravindra Chingale and Srikrishna Deva Rao, Software Patent in India: A Comparative Judicial and Empirical
Overview'Journal of Intellectual Property Rights Vol. 20 pp 210-222(2015)
[11] Samuelson P. Symposium: Towards a Third Intellectual Property Paradigm Article: A manifesto concerning
the legal protection of computer programs, Columbia law Review, 2308 ( 1994) .
[12] Sec 2(1) (ac) Indian Patent Act, 1970.
[13] Sec 2(1) (ja) Indian Patent Act, 1970.
[14] Sec 2(l) IPA, 1970.
[15] Sec 3 IPA, 1970
[16] Devika Agarwal, Software Patents; Prohibited under Indian law but granted in spirit
http://www.firstpost.com/tech/news-analysis/software-patents-prohibited-under-indian-law-but-granted-in-
spirit-3702725.html(last updated 18/02/2018)
[17]OA/22/2009/PT/DEL and Miscellaneous Petition No. 118/2012 in OA/22/2009/PT/DEL
[18] Anjana Mohan, Section 3(K) of Indian Patent Act: Case study'http://www.iiprd.com/section-3-k-indian-
patent-act-case-studies/( Last updated 18/02/2018)
[19] In re Beauregard, 53 F 3d 1583( Fed. Cir. 1995)
[20]134 S.Ct. 2347(June 19,2014)
[21] https://www.ibef.org/industry/information-technology-india.aspx
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Software Patentability - in Indian Context

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Software Patentability - in Indian Context

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2/15/22, 8:59 AM Software Patentability : In Indian Context

File Copyright Online (https://www.legalserviceindia.com/copyright/register.htm) -

Software Patentability : In Indian Context

patentability with the help of different cases in India.

Controversy on TRIPS and software

Software Protection under Patent Law

Requirement of getting software patent

In order to obtain a patent in India, an invention must fulfill four criteria:

4. Patentability exclusion for software or computer program:-Mathematical business method computer

Why not Software Patent?

Computer Related Invention Guidelines

830/CHENP/2009) in February 2017 on a method for generating dynamic relationship-based content,

Latest Software Patent granted in India

National approaches to software patentability

[2] https://www.patentwire.co.in/images/Software_Patents_in_India.pdf (last updated 19/2/2018)

[3] http://legalonline.blogspot.in/2011/03/copyright-protection-for-computer.html (Last updated 18/02/2018)

[5] Section 2(ffa) of the Copyright Act 1957

[6] Section 2(ffc) of the Copyright Act 1957

[8] 20005 (30) PTC 245 Del.

[9] Vikram K Raj and Gowree Gokhale , Incomplete

[12] Sec 2(1) (ac) Indian Patent Act, 1970.

[13] Sec 2(1) (ja) Indian Patent Act, 1970.

[14] Sec 2(l) IPA, 1970.

[15] Sec 3 IPA, 1970

spirit-3702725.html(last updated 18/02/2018)

[17]OA/22/2009/PT/DEL and Miscellaneous Petition No. 118/2012 in OA/22/2009/PT/DEL

[19] In re Beauregard, 53 F 3d 1583( Fed. Cir. 1995)

[20]134 S.Ct. 2347(June 19,2014)

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