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.