In the past few decades, information technology is on the rise and is considered a vital tool in the development of scientific progress in India.
The core element of information technology is its computer-related components such as software, its hardware and other telecommunication equipment involved.
The inventors have been aspiring to obtain patent protection for their invention for a past few years; seeing this Intellectual property office came up with few guidelines regarding the computer-related invention.
There is no set legal definition for Software Patents. The Foundation of Free Information Infrastructure (FFII) defined software patents as, "patents related to the performance of the computer-based software programme."
In the current information society, protection of knowledge and invention is of utmost importance. This is the reason that computer software enjoys dual protection under the Indian patent law.
Copyright law can protect specific codes that the programmer writes such as CSS or HTML coding. Whereas, Patent, on the other hand, prevents others from using or selling the claimed invention.
The question of maintaining balance among the development of product and conservation of right of the inventor has been the bone of contention for the Patent Office.
The position of Software patent in the current Indian patent environment is different from that of other jurisdiction such as Europe and Canada. Software Patent is considered as non-patentable subject matter in India under Section 3(k) of the Patents Act, 1970 unless it is patented along with the hardware.
Section 3(K) of the Indian Patents Act restricted computer related Patent algorithms from obtaining patent protection before the Indian Patent Act (amendment), 2002. The following conditions were made part of the international obligations imposed by TRIPS Agreement, which India had to adopt after they ratified the Agreement.
Despite adopting the TRIPS Articles on Patents, software patent created a controversial issue in India while determining patentability of software patents. The issue was that the TRIPS Articles were open-ended leaving the question regarding patent protection for software unanswered.
The 2002 Amendment of the Patents Act included the term "Per Se" along with the term computer programme. With the addition in the provision, 3 (k); patent protection for software was made possible only if filed along with hardware that needed to have certain novel features.
Simply put, software-related inventions are not protected by themselves in India. However, a patent can be obtained for a software-related invention if it is both inventive and is capable of industrial use along with innovative hardware.
Patent protection is a monopoly right over the invention, which gives power to the inventor or the applicant to stop others from using, selling or manufacturing the same invention for the tenure of the patent protection.
Software algorithms or programme are commonly protected through copyright protection. Computer software in India is treated as literary work as per section 2(o) of the Copyright Act.
The problem with copyright is that it only protects the expression of an idea and not the product itself. Hence the end result of the software programme can be replicated through some other set of codes.
Hence, seeking patent protection is the only way to safeguard the entire software programme, including the end result.
Computer-related guidelines were first issued in the year 2015; it was done to remove the inconsistencies associated with the grant of a software patent. The guidelines issued directives to the Patent Office to allow a software patent.
Open source activists profoundly opposed the directions due to which the 2015 guidelines were retracted, and new guidelines were issued that prohibited software patent as well unless they were filed along with novel hardware as well.
The examination procedure for Computer-Related Invention is similar to that of any other patent. The invention must fulfil the following criteria for obtaining protection.
Novelty means that the invention must not be anticipated or published anywhere around the world. If any publication has published anything related to the invention prior to the grant of the patent application will be immediately rejected by the patent office.
The invention must have applicability in any industry to be considered the patentable subject matter.
The invention must include some technological advancement or should include economic improvement of some kind.