Registration of Software as Patent

Registration of Software as Patent

India, in terms of Intellectual Property, is witnessing a number of changes in recent time. It includes the verdict of Supreme Court over Novartis case, amendment in Copyright Rules, Trademark Act and other major initiation of the Government.

However, still the debate is hot over the basic issue to allow the software to be registered as Patent. In the current scenario software can be registered as the Copyright under Copyright Act.

In India, as per definition given under section 2(1)(j) of Patent Act an Invention means a new product or process involving an inventive step and capable of industrial application. Further, Patent Act excludes certain terms which cannot be patented. Section 3 provides for the exclusions such as

“(k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;”

Patents (Amendment) Ordinance, 2004 was proposed to make amendment in Section 3(k) as follows:

“k) a computer programme per se other than its technical application to industry or a combination with hardware;

 (ka) a mathematical method or business method or algorithms;”

However, through the enactment of the Patents (Amendment) Act, 2005, which did not include these amended provisions of the ordinance, the position of 2002 amendments were restored automatically.

Therefore, the re-instatement of the original phraseology of section 3(k) clearly indicates that the legislature intended to retain the original scope of exclusion and did not approve its widening under this sub-section as attempted through the ordinance. Although, the initiation of registration of software as patent would have  granted a better option to the author against piracy and use of software.

In global scenario since 1998, United States of America allowed the software-related inventions (and mathematical algorithms in general) as patentable having some "useful, concrete and tangible" result, in addition to the usual criteria (novelty, non-obviousness and industrial application). However, in Europe and to some extent in Japan, they are only patentable if "sufficiently technical in nature" (which excludes business methods in particular).

In India certain computer related invention such as any new method/process, apparatus etc. are patentable and can be applied for registration. But any computer programme per-se cannot be applied as patent. 

For more details on registribility of Compter Related Inventions as patent please visit http://ipindia.nic.in/iponew/draft_Guidelines_CRIs_28June2013.pdf.

Note: The information produced above are subjected to change  of the legislation. The author or any of its associates shall not be  liable for any damages occurred, directly or indirectly, to any person because of any action taken solely based on this article.