Filing a software patent requires drafting the patent application as per best practices followed by patent office. With the internet connecting the dots and spaces between all geographical areas, with the world constantly growing with ever changing technology, with competition not being restricted to one’s own locality or even country- when the world is one’s oyster quite literally, it also leads to much more competition across the globe. Thus, the need to secure one’s own idea, their original contribution to the developing world becomes imperative so that one is able to carve their own niche in this globalized system.
India’s growing Information Technology (IT) sector serves as an example as to how India has boosted its development of innovative and new technology in the past few years. When there is a new innovation, there is always a new idea behind it and it therefore becomes imperative to safeguard the original and innovative idea. This is where a patent comes into play. A patent serves as a means through which an entity can get all the rights to their original idea and can also earn monetarily after due process of patent valuation determines its actual value in the market. In simple words, the inventor gets sovereign rights over his/her product and no other entity can make the same product or sell it unless they have the inventor’s assent. The Indian Patents Act, 1970 governs all aspects of the patent in India, including what can and cannot be patented, guidelines and procedure for obtaining a patent, tenure of a registered patent, etc. However, the Section 3(k) of the Indian Patents Act, 1970 reads that ‘mathematical or business method or a computer programme per se or algorithms’ do not fall under the category of items that can be patented in India. Thus, it becomes difficult for software patents to be authorized in India despite their being numerous new and innovative ideas from the great minds of the budding engineers from all across India. The definition of a software patent as put forward by Foundation for a Free Information Infrastructure (FFII) is being a patent on any performance of a computer realized by means of a computer program.
Computer software does form an important part of intellectual property in India. Computer software and programs can be registered as a “literary work” as per the act by using copyright registration. However, the shortcoming of this provision is that the laws are only able to protect the specific codes but not the idea behind them. A few computer related inventions can be patented in India such as an equipment-controlling system, a method to compress or process data, video, image or audio, an equipment controlling system, a method of improving a machine or memory operation and mobile unit positioning method.
While software by itself cannot be patented in India- but if it’s both inventive and competent for industrial use, it can be patented. Furthermore, novelty also forms an important consideration for getting a software patent in India. Novelty refers to “new invention” which means that the subject matter has not fallen in the public domain or it does not form a part of the state of the art.
In 2005, a clause was proposed to include software patents in India but the Parliament of India rejected that proposal. The justification behind this move and the argument provided by those who support this usually claim that software patents are actually minor inventions. Thus, a software invention can be easily and individually replicated by others and therefore should not be granted a patent as it may slow down the development of the field it concerns. The underlying argument used for denying software patents in India is that patenting it could hinder innovation. The argument is that if software in itself is patented, a majority of the software inventions will be owned by a minority of organizations. The fact that India is a developing country, programmers must be given the freedom to innovate and that can only be done if they have freedom to access the open source software. Patented software will make it inaccessible or not easily accessible and more costly, thus hindering development.
Therefore, this piece highlights the practice of software patenting in India and the ideas behind why it’s difficult to get software patents.