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Are software inventions patentable in India?
The India IT industry has witnessed tremendous growth is the past decade, resulting in large IT companies and inceptions of several promising start-ups. In the initial phases, the IT industry was largely focused on offering services. However, eventually, several companies started creating software products. Companies that create software products strive on innovation to create unique products to counter competition, hence, the desire to protect such innovation through patents and sustain competitive advantage.
Patent laws of several countries favour patent protection for software innovation. Such countries include USA, Australia and Singapore, to name a few. However, many other countries, which include India and European nations, have more stringent laws concerning patent protection to software innovation.
Indian Patent Act offers patent protection to product or process (if they satisfy various requirements of patentability) as long as they do not fall under non-patentable subject matter. Section 3 and 4 of the Indian Patent Act specify a list of subject matter that is not patentable. Section 3(k) of the Indian Patent Act, which is provided below, is of specific importance to software innovation.
“What are not invention – The following are not inventions within the meaning of this Act, – a mathematical or business method or a computer program per se or algorithms;”
Amateurs often refer to the above section and state that none of the software innovations are patentable in India. However, the reality is far from such perceptions.
To begin with, the patent office, in its “MANUAL OF PATENT OFFICE PRACTICE AND PROCEDURE” (MPPP) offers some clarity, if not to a great extent, on what kind of software innovations will be considered as “computer program per se” and held non patentable, and what kind of software innovations do not fall under section 3(k).
Before we move any further, one thing is certain from the inclusion of such explanation in the MPPP:
Having said that a wide range of software innovations are patentable in India, one has to be aware that, almost all patent applications for software innovations are initially objected by the patent office citing section 3(k).
However, if the application for a patent (patent specification) is crafted intelligently by understanding the Indian patent prosecution practice, one can successfully obtain protection for software innovation.
One of the keys for successfully having a patent granted for software innovation lies in the ability to present the innovation in such a way that the innovation, which we are aiming to protect, includes subject matter which is not a computer programme. Further, subject matter that is “not just a computer program” should be intelligently made an essential part of the invention, without compromising on the scope of protection.
The above opinion is reinstated by the fact that the Indian Patent Office has been granting patents to, what is normally perceived as “software innovations”. We have provided below, an exemplary list of patents granted by the Indian Patent Office to software innovations:
Company
|
Patent No.
|
Title of the patent
|
|
252220 |
Generating user information for use in targeted advertising |
|
252156 |
Method and system for text segmentation |
|
246911 |
A method for automatically targeting web-based advertisements |
Oracle |
245515 |
Tracking space usage in a database |
Oracle |
252448 |
In-place evolution of xml schemas in databases |
Ebay |
242805 |
Facilitating micropayments between a plurality of parties |
Ebay |
239304 |
Method and system for scheduling transaction listings at a network-based transaction facility |
We hope this article helps innovators in the software industry to adequately protect their innovation. You may also be interested in reading our article relating to territorial Jurisdiction of Software Patents
Feel free to write to us at [email protected] with queries you may have, and we will be glad to help you!
I hope you found this article helpful. Please feel free check our patent services page to find out if we cater to your patent requirements.
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License
Filing a national phase patent application in India after filing a PCT application
The statutory fee depends on who the applicant of the patent is. The Indian Patent Office (IPO) has categorized the applicants into 4 categories:
- Natural person
- Other than natural person – Startup
- Other than natural person – Small Entity
- Other than natural person – Others except small Entity
Any individual(s) applying for a patent is considered as a natural person. On the other hand, all other entities that do not fall under the first category, fall under the remaining categories of :
- Other than natural person – Startup
- Other than natural person – Small Entity
- Other than natural person – Others except small Entity
- Other than natural person – Startup
- Other than natural person – Small Entity
- Other than natural person – Others except small Entity
The IPO fees for filing a national phase application are provided below:
Step No. |
Step |
Indian Patent Office Fee (E-filing) |
|||
Applicant – Individuals/Startups |
Applicant – Non Individuals |
||||
Small Entity
|
Other than Small Entity | ||||
1 |
Filing a National Phase application in the IPO |
USD 27 |
USD 68 |
USD 136 |
|
2 |
Fee for each sheet in excess of 30 sheets in a patent specification |
USD 2.7/per sheet |
USD 6.8/per sheet |
USD 13.6/per sheet |
|
3 |
Fee for each claims in excess of 10 claims. |
USD 5.4/claim |
USD 13.6/claim |
USD 27.2/claim |
|
4 |
Filing an Examination request in the IPO |
USD 67 |
USD 168 |
USD 336 |
|
5 |
Filing statements and undertakings(Form 3) (Mandatory as per Indian Patent Act) |
No fee |
No fee |
No fee |
|
6 |
Fee for each priority document above 1 priority document |
USD 27/priority document |
USD 68/priority document |
USD 136/priority document |
|
Patent office fee may vary as per foreign exchange rates. 1 USD = ~ INR 60 |
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No. of pages in the specification
- The Indian Patent office charges an additional fee for each additional page over 30.
- The total number of pages includes description, claims, drawings and sequence listing if any.
- The margins requirements are 4 Cms at top, 4 Cms on left, 3 Cms at bottom and 3 Cms on right. Line spacing is 1.5.
No. of claims
- The Indian Patent office charges an additional fee for each additional claim over 10 claims.
- There is no restriction on the type of claims. The claims can be independent,dependent or multi-dependent. Only additional fee per claim is charged for each additional claim above 10 claims.
No. of priorities claimed
- The Indian Patent office charges an additional fee for each additional priority document over 1 priority.
- While calculating the number of priorities, PCT application is not considered a priority. If the PCT application itself is the priority application, then it is considered as a priority application.
Request for examination:
- The deadline to file an examination request in the Indian Patent office is 48 months from the earliest priority date.
- It is however, recommended to file the examination request along with the application, since the application is queued for examination, only upon filing the examination request.
- The fee mentioned in this calculator is for the normal examination request. It is recommended to file an express examination request, if the national phase application is filed much earlier than the 31 month deadline. By filing an express examination request, the application is put in queue immediately upon filing the application. If a normal examination request is filed, the application is put in queue for examination only after 31 months from the priority date.
Applicant type
- Any individual(s) applying for a patent is considered as a natural person. To be considered as natural persons, all the applicant(s) should be individuals.
- Applicants wishing to claim Start-up Status, need to provide proof of being a Start-up. To know more about this, you can read our article
- Applicants wishing to claim Small Entity Status, need to provide proof of being a small entity. To know more about this, you can read our article.
- Entities who do not qualify as either individuals or start-ups or small entity, will be considered as large entity
Kindly note that, the patent specification to be filed in the IPO has to be the same specification as filed in PCT stage in WIPO. Any article 19 and 34 amendments made during PCT stage, can be filed in IPO as well.
- Significance of Statement of Working In The Indian Patent System
- Indian Patent’s Achilles Heel – Statement and Undertaking
- Patent Application Filing Procedure/Process in India
- Indian Patenting Process Timeline
- How soon after filing a patent application in India, will it be examined?
Using Patents as a Marketing Tool – Good, Bad and the Ugly!
Marketing is one of the core functions in any business. This core function is carried out by working in conjunction with other functional units of companies. Working in conjunction with other functional units has known to help marketing teams in capitalizing on various aspects of the company to build brands and facilitate sales.
One of the aspects that is being used increasingly over the past few years is patents. Using patents in marketing helps in sending across a wide range of messages.
We recently conducted a survey to understand consumer perception when they recognize that a product is protected by a patent, be it through an advertisement or through information provided with the product itself.
Largely, consumers seem to derive the below listed perceptions when they recognize that a product is protected by a patent:
- When a message about a product being protected by a patent is conveyed, the company as a whole is perceived to be innovative
- The patented product is perceived to be superior
- The patented product is perceived to be unique, as no one else can copy the patented product
I agree with the first perception to a large extent. The fact that a company has a patent granted, illustrates that the company has, at least to some extent, invested in innovation. Further, the company has long term (it generally take around 3.5 to 4 years to have a patent granted) vision in protecting their innovation. Hence, a perception that a company is innovative can be agreed upon.
Further, as pointed out earlier, consumers perceive that a patented product is superior; this perception appears to be rather strong. However, while some patented products may be superior compared to other products in the market, it may not always be true. In over simplified terms, one can say that a patent was granted to a product or a process because the product has a feature or the process has a step that was not known to the public, prior to inventing the product or the process. However, it does not necessarily mean that the new feature or the process step is superior than the existing features or processes. Hence, a sweeping statement that a patented product is superior may not be accurate.
While I have some objections with the second perception, I completely agree with the third perception. The patented product would be unique, at least to some extent, as compared to other products in the market. However, having an opinion that a patented product has some breakthrough innovation in it, may not be correct, considering that most innovations are incremental in nature and not breakthrough. The innovation in the product, be it incremental or breakthrough, the fact remains that the product is unique, as the product cannot be copied, since the product is protected by a patent. The common understanding among consumers that a patented product cannot be copied by other, and hence the product remains unique, appears to be greatly abused by marketers.
Consumers to a large extent are not aware that patents are jurisdiction specific. In other words, a patent granted in US and not in India, cannot be enforced in India. Which means, if a patent for a product is not granted in India, and is granted only in the US, then anyone in India can copy the patented product without being liable for infringing on the rights of the US patent holder.
I recently came across one such advertisement, which I think was trying to take advantage of incomplete understanding among the consumers about the patent system. The advertisement appeared in Times of India (TOI), Bangalore edition and was also found in TOI Mumbai edition. Image of the advertisement in the Mumbai edition is provided below. The advertisement is from a company called Advanced Hair Studio, and endorsed by Shane Warne!
Image source: Times of India
The advertisement stresses a lot on patents, with the word “patented” appearing 4 times in the advertisement, out of which, twice the company has used the word “patented”. Since, they have stressed substantially on patents, we wanted to find out the patent portfolio covering their technology. Surprisingly, while they have a few patents outside India, they don’t seem to have a single granted patent in India!
The advertisement gives an impression that their technology is protected by patents in India. However, considering that one of the most important aspects of patents, which is the jurisdiction in which it is granted, the advertisement should have mentioned that the technology is not protected by patents in India.
Such usage of the word “patented”, commonly known as “false marking” may be interpreted as an effort to deceive the public. False marking is punishable in most countries, and in India (Indian Patent Act – Section 120), a fine extending up to INR 100000 (~$2200) may be imposed for such an offence. While, the extent of fine may not deter most companies from adopting false marking strategy for marketing, at least the knowledge that such practice is considered unethical, should stop them from adopting such strategies.
To sum it up, using patents as a marketing tool has a lot of positive effects on consumers. Hence, while marketers might use this strategy, ethical or not, to their advantage, consumers should absorb such messages with a pinch of salt.
I hope this article helps in increasing knowledge about the patent system among consumers in general, and markets in specific.
Feel free to contact us ([email protected]) or ask us a question and have it answered within 24 hours. Check our patent services page to find out if we cater to your patent requirements.
We specialize in offering patent support services to patent practitioners across the world.
Thanks,
Team InvnTree
This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License
What can be patented and what cannot be patented
Some time back I was asked by one of the readers of my article, if I can tell him what can be patented and what cannot be; hence this article.
1. an invention which is frivolous or which claims anything obviously contrary to well – established natural laws: (Ex: