Software Patents in India and Recent Amendments

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Software Patents in India and Recent Amendments
What are Software patents
A software patent is a patent on a piece of software, such as a computer program, libraries, user interface, or algorithm.

Used where the claimed invention pertains to computer software and/or hardware

Patent Act- software patents
Section 3k of Indian Patent Act exclusively describes about software patents.
“3K-a mathematical or business method or a computer program per se or algorithms” are excluded from patenting.
Todays Scenario on Software
In today‟s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become non-patentable inventions.
Why software patents are not allowed in India
The actual problem lies in the innovation character of the Software Patents. The term of 20 years doesn't applicable on software patents as the innovation cycle of the software patents is very less as we can see in the Indian example of Facebook's patent application for Truveo's webcrawler! The other problem of the software Patents is that the Software Patents require more patenting, not in terms of innovation or novelty but in different aspects.
Truveo's webcrawler-Facebook
The patent application was filed in 2007, titled method and apparatus for an application crawler on behalf of Truveo Inc, which was later assigned to Facebook.
Rejecting the application, V Saravanan, assistant controller of patents & designs, Delhi, ruled that the claims were not allowable under Sections 2(1)(j), 3(k) and 10(4) of the Patents Act, 1970. He observed that the claims were not clear and the lack of any hardware limitations throughout the claims itself served as the fact the alleged invention lay only in the software or algorithm, which could be implemented by means of any conventional computer system or processor.
Verdict
The assistant controller further said that the claimed method merely illustrated the methodology to create a searchable database and crawl objects in the object space or object model of a document or application, particularly on the Internet which is achieved by mere software means.
“Thus from the claims, it is understood that mere computer programming instructions/ software performed by the processor are being claimed in the form of method steps and, hence, the method claim is not allowed under section 3(k) of the Patents Act,” the assistant controller said.


Ericsson vs. Intex
The official requirements set forth by the Hon’ble Delhi High Court in Ericsson vs. Intex (order in CS(OS) No.1045/ 2014 dated March 13, 2015). The order holds that, ‘... any invention which has a technical contribution or has a technical effect and is not merely a computer program per se as alleged by the defendant and the same is patentable.’

Technical Effect according to guideline
“Technical Effect: It is defined for the purpose of these guidelines as solution to a technical problem, which the invention taken as a whole, tends to overcome. A few general examples of technical effect are as follows:
 Higher speed
 Reduced hard-disk access time
 More economical use of memory
 More efficient data base search strategy
 More effective data compression techniques
 Improved user interface
 Better control of robotic arm
 Improved reception/transmission of a radio signal Technical advancement .
Technical Advancement according to guideline
Technical advancement: It is defined for the purpose of these guidelines as contribution to the state of art in any field of technology. It is important to divide between software, which has a technical outcome, and that which doesn’t, while assessing technical advance of the invention. Technical advancement comes with technical effect, but all technical effects may or may not result in technical advancement.”


After effects
Upon receiving complaints by a group led by SFLC.in, iSPRIT, and Knowledge Commons, the Indian Patent Office stayed the Guidelines on December 14, 2015.
Recently (February 19, 2016) the Government issued new Guidelines for software patents in India.
Software per se cannot be patented
Software can be patented in combination with new hardware. This means that any invention has to relate to novel software as well as novel hardware, for it to be patentable.

Looking at the Ferid Allani Order on Software Patents
Ferid Allani, in his quest to get a patent on a “method and device for accessing information sources and services on the web”


Conclusion
Still we have to wait for the official confirmation from the patent office regarding the exact methodology to be followed for obtaining a software patent in India.
Let us hope for a better outcome in the future guidelines.

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