Software Patents in India

India, like the European Union, does not allow patents for inventions related to software. The relevant provision under the Indian Patents Act dealing with software reads as: Chapter II, Inventions Not Patentable. 3. What are not inventions; the following are not inventions within the meaning of this act, (k) a mathematical or business method or computer program per se or algorithms.

Though few years back in 2004-2005 Government of India brought an ordinance to make invention related to computer software imbedded in hardware like computer, mobile, televisions etc. and having industrial application under the definition of patentable invention by amending the clause (k) of section 3 under chapter II of Indian Patent Act, 1970 but under fierce opposition such ordinance was not enacted.

A careful interpretation and analysis of the provision makes it clear that it is computer program per se that are not allowed as they are subject matter of copyright in India. The reason for not considering the software as patentable subject matter was to avoid duality of protection available to software. But subject matter of copyright can be only their literal presentation of software which includes coding decoding or algorithm form and more precisely it is their algorithms form that the Indian Patents Act does not consider the patentable subject matter.

To avoid application of Section 3 (k) of the Indian Patents act, in the claims few hardware components must be shown to form the essential part of the invention and some form of interdependence should be shown between the software and hardware components. Further the functions that require algorithm functions e.g. sensors etc. should be avoided, they can remain a part of the claim but how these sensors perform their function should not be claimed.

Therefore anyone interested in filing a PCT application national phase or Convention application has to more careful at the time of filing basic application. The language of specification as well as claims has to be accordingly modified at the time of filing of original application or else the description must have sufficient support for modification of the claims to include hardware components. Reference numerals for hardware components in the description as well as claims will also a great help in prosecution.

Recently the Indian Patent Office has published a New Draft Manual Of Patent Practice And Procedure - Patent Office, India (2008) relating to the Patent Practice to be followed by the Indian Patent office and as per manual shall allow method claims In software related inventions. Earlier the Patent office used to object of method claims only and used to allow only the device claims that too with hardware components.

Author is an advocate and registered patent attorney and is presently working with Aswal Associates. The author is a member of APAA.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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