Software patents – Indian Scenario

The impression about Indian patent law is that it does not permit software patents in view of Section 3(k) of the Patents Act, 1970 which declares that mathematical or business methods, computer program per se and algorithms are not inventions for the purpose patent registration. However, the position is that Indian law on software patents is not different from UK or European Union law. On February 19, 2016, the Indian Patent Office came out with revised Guidelines for Examination of Computer Related Inventions (CRIs). In the introductory part itself of the Guidelines, the position has been made quite clear that Patent Office is not averse to software patents subject to the condition that claimed invention should not be any of the excluded categories mentioned in Section 3(k).

            In order assist patent seekers for CRIs, the Guidelines invites attention to relevant provisions in the Patents Act, 1970 regarding three basic conditions of patentability, namely, novelty, inventiveness and industrial application of a claimed invention. Besides, the Guidelines also refer to Information Technology Act, 2000 to explain IT-related terms. If a term is not defined in either of these two Act, the Guidelines seek to explain the term by referring to dictionary meaning. The Guidelines then proceed to refer to Indian case law on patents.

            An important pitfall which the Guidelines advise patent seekers to avoid is “means plus” which might result in rejection of patent application. Precisely, the Guidelines give the following advice to the patent seekers, “The claims in means plus function form shall not be allowed if the structural features of those means are not disclosed in the specification.… Further, if the specification supports implementation of the invention solely by the computer program then in that case means plus function claims shall be rejected as these means are nothing but computer programme per se. … Where no structural features of those means are disclosed in the specification and specification supports implementation of the invention solely by the software then in that case means in the ‘means plus function’ claims are nothing but software.” The Guidelines also throw light how Patent Office perceives non-inventions mentioned in Section 3(k), and other excluded subjects mentioned in Sections 3(l),(m) and (n). The Guidelines then given three key indicators to determine patentability of CRIs. This is followed by 15 examples where each of hypothetical patent claims are anaylsed. On the whole, the Guidelines, though not exhaustive and not even authoritative work on law relating to software patents, provide sufficient guidance to one who intends to seek patent in India.

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