Software Inventions: Patent or Copyright?

Software, in its most basic form, refers to instructions that allow a computer to perform specific tasks. Source code and object code are two types of software. The source code is written in a human-readable programming language, while the object code is written in machine code. Creating software requires a great deal  of skill, time, and effort on the part of the programmer. As a result, it is critical to protect this software with the most appropriate IP protection. The conflict here is over copyright versus patent protection for software inventions.

Section 2(ffc) of the Copyright Act of 1957 defines a "computer programme" as "a set of instructions expressed in words, codes, schemes, or any other form, including a machine-readable medium, capable of causing a computer to perform a specific task or achieve a specific result." In the definition of "literary works," Section 2(o) includes "computer programmes, tables, and compilations, including computer databases." When these provisions are read together, the Copyright Act protects software or computer programmes as "Software works" under "Literary works."

 

Patent Act of 1970

According to Section 3(k) of the Indian Patents Act, "a mathematical or business method, a computer programme per se, or algorithms" are not inventions and thus not patentable.

However, in exceptional circumstances where the software meets all of the patentability criteria, the software may be patentable. Patents are granted when software satisfies the requirements of novelty, inventive step, and industrial applicability, as well as having a technical effect and interacting with some tangible element.