Software Inventions and Indian Patent Ecosystem

It is an indisputable fact that IT sector and software industry are the biggest contributors to India’s economic growth in recent times. The predominant role of these two core job providing sectors cannot be ignored in making India a rapidly developing country. Innovation is the backbone for IT and software sectors. However, a very low amount of innovation, happening in these industries are converted into protected inventions. The one big question Indian IT industry faces is, are software inventions patentable in India?

What does the law say?

The section 3 of the Indian patent act 1970 enumerates a list of inventions which are non-patentable. The point (k) in section 3 of the act states that “a mathematical or business method or a computer program per se or algorithms;” is not an invention.

All the misconceptions

As per the amateur understanding of the above clause by any inventor, new inventions related to software will be termed ineligible to be patented and hence new innovations in the software field cannot be protected as patented inventions.

On a brighter note, such perception deviates largely from reality. The revised guideline does not put a total ban upon software inventions in India. Rather, the phrase software ‘per se’ in section 3(k) means that software, in isolation, is not patentable. What is to be noted here that software usually cannot perform any task alone, but it makes a specific set of hardware to execute the task. Any software related invention shall be seen as the combination of program and specific hardware, necessary to perform the intended task.

Thus, the innovative software can be patented in the form of the ‘computer related inventions’, in combination with hardware. My firm has recently secured a patent for our client wherein his invention was about a delicate program which helps in reducing processing error for a preset timeframe. Here, a timer and processing components are also important to execute the intended task. Thus, in the patent draft, we have not only focused on program part only but the whole arrangement to execute the intended task.

The need for modification of the original rule

The rules in the guidelines that existed earlier, issued by the Indian Government on August 21, 2015, largely broadened the scope of software patent applications by permitting applications for any new software in combination with hardware that is not new. There was a need to modify the rule due to the fear that earlier guidelines would greatly benefit multinational corporations, who have funds and means to obtain expensive patents and manage patent litigations. That situation stopped SMEs and startups to a great extent from applying for patent protection. Unawareness for India IP ecosystem and lack in help were also the reasons behind low patent applications from startups and small companies, despite the fact that India is a global powerhouse in developing software and writing codes.

Under the revised regulations, unless the new software is combined with a unique device, it cannot be patented. This addition in the previous scope of patentability for software inventions is now helping preserve innovation in the software industry.

Software invention is now patented in India?

Contrary to the misconception, the answer to the above question is in positive. An inventor can certainly get a software invention patented in India by ensuring that the invention lies in both, software as well as the hardware (which helps in executing the intended task), along with fulfilling the other general criteria of patentability.

In conclusion, this article aims to clear the obscurity around patentability of software inventions. The revised guidelines by the Indian government aim to promote innovation and encouraging the patent ecosystem. Keeping in view the development of small startups and small companies, the recent amendments in the guidelines are laudable. So, yes, Software can be protected by patents with the right approach and under correct guidance of a patent professional.

What does the law say?

The section 3 of the Indian patent act 1970 enumerates a list of inventions which are non-patentable. The point (k) in section 3 of the act states that “a mathematical or business method or a computer program per se or algorithms;” is not an invention.

Written By: UJJWAL JHA

Founding Partner, Anuation Research & Consulting LLP

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