Software patents are one of the most contentious issues in Intellectual Property Rights. The growing economic significance of computers and computer programs gives software patents this controversial status.
Every innovator wants to make a mark and stand apart from the crowd, wanting to get the complete right over his innovation. India was the first nation to provide the statutory protection for software but that has not been the case for patentability of software. The copyright protection of the software is the protection for only the expression and not the ‘big idea’ which resulted in the development of the software. With the rapid advancement of technology, a number of creators and inventors are trying their hands on various applications and developing new software.
The increasing significance of software warrants for its protection under law. Software is still covered under the copyright regime in India by way of Copyright Act, 1957. However, the patents are being granted with respect to the software in United States and Europe.
The legal protection of the innovation and creation of the individuals was recognized quite late in India, with the Patents Act coming into play in the year 1970. The Patents Act, 1970 (along with Patents Rules, 1972) came into force on April 20, 1972. The patentability of software is one of the most controversial areas of intellectual property. In India, most of the software and codes are protected by claiming copyright.
In the light of the foregoing, it is important to access and analyse some of the important case laws clarifying the Indian jurisprudence regarding the protection in law for software.
A. Electronic Navigation Research Institute Vs. Controller General of Patents
IPAB, OA/26/2009/PT/DEL, July 5, 2013
In this case relating to patent application for the invention titled “A CHAOS THEROETICAL EXPONENT VALUE CALCULATION SYSTEM”, the Indian patent office denied the patent on the grounds that said invention falls under the category of mathematical formulae even if it produces a technical effect. The invention in this case claimed a mathematical method for evaluating time series signals.
B. Yahoo v Controller of Patents & Rediffcom India Limited
IPAB, OA/22/2010/PT/CH, December 8, 2011
Section 3(k) of the Indian Patents Act was discussed in this case before the Intellectual Property Appellate Board (IPAB). The patent application was held non-patentable as being the business method embodied via technology. The order passed by the IPAB in instant case stated that where technical advances are only a manifestation of a core business method, such advances shall not accord any advantage to the patentee in the allowance of the patent. In simple words, business methods disguised as technical subject matter without any innovative aspects cannot be patented in India. In the case of Yahoo, the patent claims included features of a software tool targeting search terms relevant to Yahoo’s business. Accordingly, the IPAB concluded that the technical advance proposed by Yahoo was simply a method of doing business, even if it was a technically smarter way of doing business and, therefore, cannot be patented in accordance with provisions of Section 3(k) of the Patents Act.
In the light of the following cases, it is clearly evident, a lot of innovations are still not allowed to be patented in India, especially in the case of technological field which includes software and application development. However, we are gradually trying to develop our jurisprudence in regard to the granting of patents for software. Software and Mobile App Patents are now being granted by the Indian Patent Office and recently, following patents were granted
a) Google LLC filed patent application titled LOCATION HISTORY FILTERING. The invention is about filtering location information received from multiple computing devices. During patent examination, the patent examiner raised objections under Section 3(k) of the Indian Patents Act, wherein the examiner stated that the claims define computer instructions stored in a memory and executable by a processor, hence these claims fall within the scope of Section 3(k) of the Indian Patent Act. The applicant responded by proving that the claims are not related to computer programs but a computing device, enhancing its technical effect through its constructional features.
b) Qualcomm has been granted a patent in India covering data transmission method and apparatus claims.
Under the copyright regime, the protection is granted only for the expression and there is no protection for the idea underlying the software.
It is quite possible that a person may create new software by altering the expression part of it. Considering the huge costs and efforts involved in developing a software, it is required to provide a shorter but stricter monopoly to reward the creators and encourage technological innovation. The main investment in such software is “idea”. It is this idea which needs to be protected by way of patent.
The importance of appropriate legal protection for the software can best be illustrated by taking the example of WhatsApp messaging app. The efforts which are put in by an engineer in developing an app needs to be protected. It is the idea which requires protection and not just the expression, which is possible through patent. Giving a different expression to an original app is not only prejudicial to the interests of the inventor but also the user of such fake app. The issues of data privacy are closely interwoven with the need for patentability of software.
The growing economic significance of computer and computer programmes has resulted in a lot of uncertainty and debate regarding the protection which should be given to the software. The term ‘novel hardware’ has not been defined in the Guidelines for Examination of Computer Related Inventions (CRI Guidelines) and therefore, leaving patent examiners free to interpret the meaning of the term ‘novel hardware’. It is worth noting that business methods are absolutely prohibited from being patented under Indian law and the ‘novel hardware’ requirement is applicable only when the invention is a computer program. Therefore, if a computer programme is not claimed by ‘in itself’ rather, it has been claimed in such manner so as to establish industrial applicability of the invention and satisfies all other requirements of patentability, the patent should not be denied.
However, the Order of IPAB in Ferid Allani matter is certainly a welcome step towards evolving the patentability of computer based inventions in India. This Order makes it clear that there is no absolute bar for grant of patent to computer related inventions. The patent office needs to give more importance to “technical effect” in order to give incentive to the inventor for his efforts by way of patent.
It has been rightly said by the Greek Philosopher Plato ‘Necessity is the mother of invention’.4 With the rapid advancement of technology, a number of creators and inventors are trying their hands on various applications and developing new software. The software plays an important role in the growth and development of the country and the economy as a whole. The increasing significance of software warrants for its protection under law.
Law is a dynamic concept and it has to keep changing to meet the changing needs of the society. We are definitely open to draw light from the jurisprudence in other countries but the need of the hour is that we evolve our jurisprudence in regard to the protection of software. There are certain inventions which involve a technical process and have a technical effect. Such inventions are not merely software or algorithm per se. The business method patents being granted recently to some companies is certainly a step towards evolving of Indian Jurisprudence in this direction.
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