Are software inventions patentable in India?
FollowThe 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:
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Company
|
Patent No.
|
Title of the patent
|
|
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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 |
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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
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