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IP, Patent

Software patenting has been a point of discussion for long. There have been three amendments in CRI (Computer Related Inventions) guidelines in the past three years and still, the government hasn’t given a nod to software patents in India. Why is that so? Does this mean that one cannot safeguard software at all? Keep reading to find out the answers to these questions.

 

The CRI guidelines were last amended in June 2017. The most significant amendment involved deletion of the condition that patents for software could only be claimed in conjunction with novel hardware. This change was made to ensure that the focus is on the underlying substance and the not in the form that the contribution is claimed.

 

According to the latest amendment while processing software patent application, following tests are applied by the examiner:

  • If the software is claimed for patent including hardware then it would go through other proceedings to determine the patentability of the contribution.
  • If the contribution lies solely in the computer programme i.e. “computer programme per se” then it is not considered as an invention as per the Patents Act, 1970 and is hence not patentable.

 

According to the Patents (Amendment) Act, 2002 these contributions are excluded from patentability under section 3 for Computer Related Inventions (CRIs):

  • A mathematical or business method or a computer programme per se or algorithms
  • A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions
  • A mere scheme or rule or method of performing mental act or method of playing the game
  • A presentation of information
  • The topography of integrated circuits

 

The following procedures are followed to examine the patentability of an invention: 

  • Novelty: The subject matter must be new and original, and should not have been revealed before the date of filing (priority date). The invention would not be patentable otherwise.
  • Inventive Step: It means that the features of an invention should involve technical advancement as compared to the existing knowledge or have economic significance or both. Also, the invention must not be obvious to a person skilled in that particular art.
  • Industrial Applicability: According to the Indian Patent Act, a patent can only be given for an invention which is capable of industrial application, i.e. for an invention which can be made or used in some kind of industry.
  • Sufficiency of Disclosure: Sufficiency of disclosure is a patent requirement which means that the patent application must disclose the invention by providing sufficient details The Patents Act, 1970 requires the applicant to specify “what” the invention is and “how” to perform it.

 

Following people are entitled to apply for a patent:

  • Any person claiming to be the true and first inventor of the invention
  • Any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application
  • The legal representative of any deceased person who immediately before his death was entitled to make such an application

 

Alternative ways to safeguard software:

One best solution to this problem is to get a copyright for your software under the Section 2(o) of the Copyright Act, 1957 by registering it as a literary work. Literary work includes computer programmes.

 

There are a number of compelling reasons for not patenting software. Software is a program that includes algorithms which are nothing but mathematical functions. Math cannot be patented and therefore software too. Another reason is that it leads to patent thickets. Patent thicket is a web of overlapping patents. If software is patented, a software developer must decipher patent thickets in order to develop new software. Finally, the patent system leads to a monopoly of powerful companies and it is a hindrance to technological growth and R&D.

 

 

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IP, Patent

Entrepreneurs before filing for patent registration – highly honored intellectual property rights, go through a critical step – Patent search. Patent search helps the applicant to be sure of whether his content is an invention or a discovery. In this blog, we will be looking into how patent search is done in India.

Most entrepreneurs while dealing with patent search, are with an assumption that doing a manual search on sites like www.sciencedirect.com or www.google.com would be sufficient, come to a conclusion that the process is easy peasy. Well, the fact is, on those websites you would find only 25% information, whereas 75% of information is available as patent documents and are never published. Now, I hope we have a come to a conclusion why this procedure is important. Moving on,

Patent search is the process by which prior inventions or ideas are examined, with an objective to find information that bears a close similarity to a given patent or proposed invention. The documents searched during a patent search may include granted Indian, U.S. and foreign patents, published patent applications, and non-patent literature, such as the Web, product literature, and scientific journals and databases.


Patent search is an extensive data mining, a detailed search on:

  • Previous patents
  • Trade journal articles
  • Publications (including data books and catalogs)
  • Public discussions (conference and seminar)
  • Trade shows
  • Brochures
  • Products, devices, and equipment.

Types of patent search:

  1. Patentability Search – Done to determine if:
    1. Patentability
    2. Originality
    3. Explanatory
  2. Validity Search –
    1. Examiners on patent claims (Granted patent & Published patents)
    2. Technical publications (like journals)
    3. Non-Technical publications (like brochures)
  3. Infringement Search –
    1. Infringement check
    2. Territorial search – since patent enforces in one country, does not protect your right in other countries.
  4. Clearance Search –
    1. Combination of Patentability Search + Infringement search
    2. Full text specification and claims of granted patents and published patents with a special emphasis on enforceable patent claims.
    3. Search of Expired patents, technical publications (like journals) and non-technical publications.
  5. State of – the – art – searches:
    1. Full-text specification and claims of granted patents and published patents from all major patent offices of the world (Worldwide database)
    2. Technical publications (like journals) and non-technical publications (like product brochures)
    3. Search is carried out for whole technical field or a part of technical field according to the requirement of person concerned
    4. It is not limited to unexpired patent like in case of Infringement search
    5. It is not limited to one inventive concept like in case of Patentability search
  6. Patent Landscape search –
    1. To monitor markets of interest
    2. To identify gaps in and improve your research and development
    3. To determine which of your prospective patents will have significant commercial value
    4. To confirm which inventions are now in the public domain
    5. To give a better understanding of current competitors and identify future ones.
    6. It involves all features of State-of-the-art search
    7. It involves the different types of analysis on data generated by State-of-the-art search
    8. In short, it is nothing but the analysis of large data set, both patent and non-patent documents, generated by State-of-the-art search.

 

Remember, patent search is an extensive process, and it is done in all three stages of filing patent:

  1. Before Patent Application
  2. During Patent Execution
  3. After Patent Granting



Free online databases:

Source Name

Website

Scope of Search

Google

www.gogole.com

General search

Google’s Patent search

http://www.google.com/patents

US patents only       

USPTO

http://patft.uspto.gov/

US patents only

EPO

http://www.worldwide.espacenet.com/

EP patents, WIPO patents, Worldwide patents

WIPO

http://www.wipo.int/pctdb/en/

WIPO Patents

Free Patents Online

http://www.freepatentsonline.com/

US Patents, EP Patents, JP Patents, WIPO Patents

Patent Facilitation Centre (PFC)

http://www.indianpatents.org.in/db/db.htm

Indian Patents (Abstract only)

Indian Patent

Office

http://ipindia.nic.in/patent/patents.htm

Indian Patents (Granted as well as 18 months Published

Patents)

BigPatent India

http://india.bigpatents.org/

Indian Patents (Granted as well as 18 months Published

Patents)

 

Paid databases:

Source Name

Website

Scope of Search

Micropatent

http://www.micropat.com/static/index.htm

Worldwide

patents

Derwent

http://www.thomsonreuters.com/products_services/scientific/DWPI

Worldwide

patents

Aureka

http://www.thomsonreuters.com/products_services/scientific/Aureka

Worldwide

patents

Delphion

http://www.delphion.com/

Worldwide

patents

LexisNexis

http://www.lexisnexis.com/patentservices/priorart/

Worldwide

patents

Dialog

http://www.dialog.com/

Worldwide

patents

Hoover

http://www.hoovers.com/free/

Worldwide

patents

Patent

Search

Express

http://www.patentsearchexpress.com/

Worldwide

patents

Patent

Insight Pro

http://www.patentinsightpro.com

Worldwide

patents

 

We at Wazzeer are fully equipped to provide affordable Patent search support, the Wazzeer platform enables efficient and productive project delivery, we would be happy to help you, let’s connect! 🙂

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