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SOFTWARE PATENT IN INDIA


Introduction:


In today’s digital world, software plays a crucial role in technology areas such as information technology, telecommunication, artificial intelligence, machine learning, deep learning, block chain technology, internet of things, automotive sector, etc. Organizations such as technology start-ups, Institutes, and MNCs are innovating in the above-discussed technology areas, where they are developing either innovative software or innovative products, which make use of innovative software for improving product performance. Now, it is important to protect such software from the infringement by others. A Patent is one of the effective tools by which one may protect software or computer-related inventions by filing Patent applications. In the paragraphs below, we will discuss the Indian Patent Law and guidelines related to a software Patent. We will also discuss the requirements related to the patentability of software and how one should approach to patent a software or a computer-related invention.



CAN YOU PATENT A SOFTWARE IN INDIA?


Obtain a software patent in India / Patentability of software in India with IPExcel.We provide the best possible strategies to how to apply for a software patent in India & file software patent in India.

The term “Software Patent” in India is colloquially used to address patents for computer related inventions in India, as the term “Software Patent” is not defined in any of the Indian Statutes. Instead, the Indian Statutes and Government Guidelines use terminologies like computer programme, algorithms, and computer related inventions, which in layman terms may be interpreted as a software. However, for the ease of understanding of our readers, we shall be using the term “Software” and “Software Patent” in our explanations below.

The question for the patentability of software or to patent a software related invention starts from sub-section 3(k) of the Indian Patents Act, 1970, which excludes “a mathematical or business method or a computer programme per se or algorithms” from the Patentable subject matter.


However, the word “per se” is not defined in the Indian statute but the Computer Related Invention (CRI) guidelines of 2017 issued by Office of the Controller General of Patents, Designs & Trademarks, state that the word “per se” should be interpreted using a general dictionary meaning. The Oxford Advanced Learners Dictionary defines “per se” as “by itself”, meaning, you are referring to something on its own, rather than in connection with other things.


Furthermore, the word “computer programme” has been defined under Section 2 (ffc) of the Copyright Act, 1957 as "computer programme" means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”.



Therefore, the term “computer programme per se” can be interpreted as a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result by itself is not a patentable subject matter.


Now, by reading this, you may be thinking that you cannot patent a software in India, but you are incorrect in thinking about the same. Software patent is granted in India, however, the patentability of software is not a straightforward topic and requires expertise in drafting and prosecuting the software patent application unlike other technology domains.

Patent a software & get the possible strategies to help you file a software Patent in India or get the patentability of software in India from IPExcel. IPExcel, with its dedicated team, can help you understand the patentability of software related inventions & software patents.

The Indian Patent office has tried through various guidelines to give a correct interpretation for the prescribed law related to the software or computer-related inventions and has also tried to streamline the criteria for the patentability of software related inventions and the examination procedure for the software Patent or the computer-related inventions in India. In an effort to clarify the patentability of software or computer related inventions in India, the recent guidelines of 2017 issued by Office of the Controller General of Patents, Designs & Trademarks states :


“Since patents are granted to inventions, whether products or processes, in all fields of technology, it is important to ascertain from the nature of the claimed Computer-related invention whether it is of a technical nature involving technical advancement as compared to the existing knowledge or having economic significance or both, and is not subject to exclusion under Section 3 of the Patents Act.

The sub-section 3(k) excludes mathematical methods or business methods or computer programme per se or algorithms from patentability. Computer programmes are often claimed in the form of algorithms as method claims or system claims with some “means‟ indicating the functions of flow charts or process steps. It is well-established that, while establishing patentability, the focus should be on the underlying substance of the invention and not on the particular form in which it is claimed.

What is important is to judge the substance of claims taking whole of the claim together. If any claim in any form such as method/process, apparatus/system/device, computer program product/ computer readable medium falls under the said excluded categories, such a claim would not be patentable. However, if in substance, the claim, taken as whole, does not fall in any of the excluded categories, the patent should not be denied.


Furthermore, in the recent case of Delhi High Court, it is iterated that not all computer programs are hit by the bar under Section 3(k) of the Patents Act. Computer programs may be patentable if they demonstrate a 'technical effect' or a 'technical advancement'.

The Hon’ble Court has also observed that:


“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, block chain technologies and other digital products would be based on computer programs, however the same would not become non patentable inventions – simply for that reason. It is rare to see a product which is not based on a computer program. Whether they are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all have some sort of computer programs in-built in them. Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability.”


From the above discussion, it can be concluded that a person can patent a software in India if the software can match up to the requirements prescribed by the CRI guidelines and related laws.




HOW TO PATENT A SOFTWARE IN INDIA?


IPExcel can help you obtain a software patent in India or to get the patentability of software in India. We offer services to file software patents, check patentability of software & patent a software. The patentability of software is not a straightforward topic & requires expertise in drafting & prosecuting how to apply for software patent in India.

Although, you can patent a software in India, it is not an easy task when compared to any other technology domain even today. The requirements for patentability of software includes novelty, inventive step, industrial application and overcoming section 3(k), which discloses computer programme per se, and algorithms as non-patentable subject matter. Out of these requirements, proving inventive step and overcoming section 3(k) can pose difficulties in obtaining a software patent in India.

In order to obtain a software patent in India, it is of utmost importance that while drafting the software patent application, the person drafting the patent application should clearly indicate the features, which demonstrate technical advancement and technical effect in the claims, and such claims should be properly enabled in the specification of the software patent application. Such a practice would greatly increase the chances of securing a patent grant for a software invention.


IPexcel can provide you the best possible strategies to patent a software related invention or a computer-related invention in India and in other countries. IPexcel, with its dedicated team, can help you understand the patentability of software related inventions & can also help you to file a software Patent or a Patent for computer related inventions in India or in other countries.



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Patent a software or file software patent & discuss the requirements related to the patentability of software and how to apply for software patent in India. IPExcel guides you in obtaining a software patent & File software patent.

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Dr. Anand Biswas - IPexcel is a specialized Global Intellectual Property Advisory Organization that assists in Filing A Utility Patent.

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M.Sc. (Integrated) & Ph.D.
IIT-Kanpur


Dr. Anand Biswas - IPexcel is a specialized Global Intellectual Property Advisory Organization that assists in Filing A Utility Patent.

M.Sc. (Integrated) & Ph.D.
IIT-Kanpur

Anand is a Technology Analyst with over than 15+ years of experience in the Technology & Patent Domain. He holds Masters (Integrated) in Chemistry and Ph.D. in Materials Science both from Indian Institute of Technology (IIT), Kanpur, India. Over the years, he has gained immense hands-on experience in consulting Technologists & In-house R & D Teams of Fortune 50 organizations for developing, protecting and licensing innovative proprietary technologies. He has worked onsite/offsite extensively with global teams of attorneys, technologist and business leaders across many jurisdictions such as US, Europe, Canada, China, South Korea, Singapore, and Middle East.
Prior to joining IPexcel, he has worked for 8+ years, in a Fortune 50 organization - General Electric (GE), where he provided Inhouse R&D teams with Technology & Competitive insights to help them in various stages of technology development & commercialization. He has also worked as a Senior Portfolio Manager at King Abdullah University of Science & Technology (KAUST), Saudi Arabia, where he was responsible for working closely with Technologists in creating, protecting, maintaining and commercializing IP Portfolios of KAUST. He was also a Director in an International Technology Consulting Firm, where he was responsible for driving growth of the Organization in global markets. Anand has also published 17 research papers in journals & conferences of International repute on Technology & TRIZ.

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M.S. (Electronics) | Ex-GE |
Ex-Lockheed Martin | Ex-Northrop Grumman


Master’s Biotechnology, LL.B.
IIT-Kharagpur
Patent Attorney



Master’s Biotechnology, LL.B.
IIT-Kharagpur
Patent Attorney

He holds a Master’s degree in Biotechnology and LLB with specialization in Intellectual Property Laws. He is an IIT Kharagpur Alumni and has an overall experience of 7 years in Patent Laws. His expertise lies in Patent Drafting and Patent Prosecution for India & abroad. He has drafted more than 300 Patent Applications for India, US, Europe and PCT and has prosecuted more than 250 Office Actions for India, US, and Europe. Prior to joining IPexcel, he worked for Fox Mandal & Associates, the oldest law firm in India with International presence. Apart from Patent drafting & Prosecution, he represents IPexcel at Various National and International Forums.

B.Tech., M.S., Dip. IPR
Robert Gordon Univ. UK



B.Tech., M.S., Dip. IPR
Robert Gordon Univ. UK

He holds a Master’s degree from Robert Gordon University, Aberdeen, UK. He is a Mechanical Engineer with overall 5 years of experience in Intellectual Property and technology domain. Before joining IPexcel, he has worked with General Electric (GE), where he evaluated Technologies and implemented ideas around various technology domains. His expertise lies in developing Technology Portfolio Strategies through Extensive Technology Landscapes, Technology & Patent Assessments, Competitive Intelligent reports and Freedom to Practice and White Space & Gap Analysis for R&D Areas. One of his expertise worth mentioning includes Oil & Gas. He also works with the R&D and legal teams for developing risk mitigation strategies for various organizations. He also has experience in Patent drafting & Prosecution of US and Indian Patent applications. He has also published many International Papers in highly reputed international journals.

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