TechVoice: The Pivotal Role of Software Patenting In India
Blog: NASSCOM Official Blog
Jatin Trivedi, Senior Partner, Senior Partner at Y. J. Trivedi & Co. and IPR Attorney
“Life, Liberty and the pursuit of Happiness” is a well-acknowledged phrase in the United States Declaration of Independence. Here the phrase provides us three examples of the “unalienable rights” which the Declaration says have been given to all humans by their creator, and for which governments are created to protect. In present time, it is more expansively about the right to pursue happiness and precisely, it is time we acknowledge that our freedom to pursue happiness is the basis of many other corresponding rights, including the right to innovate and the right to earn a living. These rights also aid as the source of more specific freedoms: the freedom to tinker and try, or to innovate.
As we know, Inventions are the bedrock of innovation, our techniques leading towards innovations & inventions are a testimony to this fact. Over the past decade, the IT industry is one of the fastest growing industries in India. In this new era of Industrial Technological development innovations has marked its evolution with the advancements in Industry 4.0. With the innovations and inventions revolving around Blockchain, Artificial Intelligence, IoT, Industry 4.0 is moving faster towards automation.
Intellectual Property Rights (IPR) is the basis for protecting inventions & innovations. IPR influences the financial improvement of a nation by advancing solid challenges and empowering industrial development and monetary development. Patent is one of the forms of IP & can be granted for inventions.
‘Patentability of software related inventions’ is a debate since long, specifically in regard to section 3(k) stating a mathematical equation or business method or a computer program per se or algorithms shall not be considered as inventions and hence not patentable.
Here, when we say computer program per se the claims of the inventions include Computer programmes, Set of instructions, Routines and subroutines, Computer program products, Storage Medium having instructions, Database, Computer Memory with the instructions stored in a computer-readable medium.
Under current Act, ‘a mathematical or business method or a computer programme per se or algorithms’ are non-patentable. Patent applications, with computer programme as a subject matter, are first examined as to whether they are mathematical methods, business methods, or algorithms. If the subject matter of an application does not fall under any of these categories, then, it is examined to decide whether it is a computer programme per se, which is again not patentable. But when the software transcends this per se status, it becomes patentable. Now, when there is the term “per se” used in this regard, it is understood that, when it is not merely a computer program, it is patent eligible. Example for the same is computer software in combination with a novel hardware is patentable.
In other words, a patent application having claims directed to software programme/algorithm with computer instructions cannot be claimed as an invention but if a device/apparatus/system by implementing the software/algorithm solves a technical problem then that particular device/apparatus/system is a patentable invention.
To illustrate, following are the examples where patent was granted:
In case of, Accenture Global Service GMBH vs. the assistant controller of Patents & Designs, the patent application was initially refused for patent registration by patent office under the provisions of Section 3(k) of the Indian Patents act. However, the patent applicant appealed before the IPAB (Intellectual Property Appellate Board), and as per the Controller’s decision, it was held that the instant invention as claimed is not “software per se” rather it is a system which claims technical improvements in web services and software. In light of this, it was held that the invention since not falling into the category of section 3(k), viz software per se, corresponding objection was waived, and the patent was granted.
Likewise, in the case of Enercon India Limited v. Aloys Wobben, Germany, before IPAB, a patent application was filed which claimed the automated steps for controlling the wind turbine which depended on the external conditions by the use of computer system. It was decided that it was not merely a computer software per se or a set of rules or procedure like algorithms. In fact, it is a computer program providing technical advancement. Thus, its patentability cannot be objected to, thereby, the patent application was eventually granted.
With the role of Software Inventions growing in number as economies growing stronger, ‘Software Patenting’ can play an important and positive role in economic advancement. In February 2019, the Government of India also took vital initiative to release the National Policy on Software Products 2019 to develop India as a software product nation. In India, IT industry have proved its capabilities in delivering both on-shore and off-shore services to global clients, emerging technologies now offer an entire new gamut of opportunities for every stratum of IT Industry. Having this all synergized, inventors and innovators can ensure about the upcoming opportunities, pertinent IP protection, and potential revenue generation commencing towards promising tomorrow.
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