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.
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.
