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In today's digital world, software is crucial in technology areas. Organisations 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 essential to protect such software from infringement by others. A Patent is one of the practical 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 patenting software or a computer-related invention.
Primary Consumer of Pater is Information Technology- IT sector is the top consumer of a software patents. This sector is the one offering us inventions in form of software, applications, websites, etc. Thus, the primary consumer of patents holds the utmost need to avail the right over their products. Software patent application makes it easy to access and one can understand the whole process with ease.
Other sectors that need patents are:
The answer is "Yes." You can avail patents on software. India is a progressive country with a lot of inventions and discoveries. Thus, the country is open to the medium to help them patent computer software.
Technological advancement has shaped the future of our country. India stands tall in the list of top 10 providers of IT professionals worldwide. The level of work professionals here perform is top-notch, and new-age start-ups represent it which are a hit globally.
With these inventions comes the concern relating to the commercial rights of the product. The one thing that can help is to secure a patent. Now, you will wonder how to get a software patent in India.
It is a simple process but only with the help of a legal guardian. An expert who will be guiding light for us. The professional that will help us attain the much required patent lawfully.
But before that, we will understand the various essential terms.
The term "Software Patent" in India is commonly used to address patents for computer-related inventions in India. The term "Software Patent" is not defined clearly in any of the governing Indian Statutes. Instead, the Indian Statutes and Government Guidelines use terminologies like a computer programs, algorithms, and computer-related inventions.
These in layman's terms may be interpreted as software. However, for the data to ease our readers' understanding, we use the term "Soft Terms" and "Software Patent" in our explanations below.
Thus, a software patent is a patent available over the nominal. A computer program, computer-related inventions, and algorithms all are considered software.
The question of 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 program per se or algorithms" from the Patentable subject matter.
Thus, patenting software in India is a legal step to cover your rights over the invention. These steps are by the patent applicant, which can be an inventor. The patent applicant owns all the requests, and the monetary benefits are in the name of the claim.
However, the word "per se" is not present in the Indian statute. Still, the Computer Related Invention (CRI) guidelines of 2017 issued by the Office of the Controller General of Patents, Designs & Trademarks state that the word "per se" should be interpreted using a general dictionary. 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 program" has been defined under Section 2 (ffc) of the Copyright Act, 1957 as "computer program" 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 program 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.
By reading this, you may think that you cannot patent software in India. But you are incorrect in thinking about the same. Finally, the allotment of the patent to the applicant. However, the patentability of software is not a specific topic.
It requires expertise in drafting and prosecuting the software patent application, unlike other technology domains.
The Indian Patent office has tried through various guidelines to give a correct interpretation. For the prescribed law related to software or computer-related inventions. And has tried to streamline the patentability of software-related inventions.
Also, the examination procedure for the software Patent or computer-related inventions in India. To clarify the patentability of software or the computer related inventions in India, the recent guidelines of 2017 issued by the Office of the Controller General of Patents, Designs & Trademarks states :
"Since patents are available to inventions, whether products or processes, in all fields of technology. it is essential to ascertain from the nature of the claimed Computer-related invention whether it is technical involving technical advancement as compared to the existing knowledge or has economic significance or both, and is not subject to exclusion under Section 3 of the Patents Act.
The sub-section 3(k) excludes mathematical or business methods, a computer program per se, or algorithms from patentability. Computer programs 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 by taking the 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 a whole, does not fall in any of the excluded categories, the patent should not be denied."
Furthermore, in the recent case of the 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.'
"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 reflects that a person can patent software in India if the software matches the requirements prescribed by the CRI guidelines and includes other laws.
Although you can patent software in India, it is not an easy task. During comparison with any other technology domain even today. The software's patentability requirements include novelty, inventive step, industrial application, overcoming section 3(k), which discloses computer programs per se, and algorithms as non-patentable subject matter. Out of these requirements, proving inventive steps and overcoming section 3(k) can pose difficulties in obtaining a software patent in India.
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 indicate the features, which demonstrate technical advancement and technical effect in the claims, and such claims should be enabled adequately in the specification of the software patent application. Such a practice would significantly increase the chances of securing a patent grant for a software invention.
Fortunately, Mumbai has one of the four patent offices in our country, and one can fill up the application for patentability of Software in Mumbai. The process begins with a consultation with a legal advisor who offers guidance about the application, documentation, and filing of the patent application. The product's inventor must make an application themselves or through a representative. Later, The application is submitted to the officials, who publish it over the portal.
The process may take 18-24 months, and the final allotment is done after all the due checks. A software patent in Mumbai involves roughly four steps, typical for any city, including Mumbai. Every patent office follows the same rules and standards for every applicant all over the country. The description of software and documentation requirements may vary, which can be eased out by a professional.
Yes, it can achieve a patent in Mumbai through a patent application. Though, one can always choose to file a patent through an online facility. The facility is highly flexible, quick, and involves no commute.
The typical cost of a patent varies as per the product. There is separate pricing for a provisional patent and a final patent. The first one is cheaper and can be within 10000 INR. At the same time, the last patent can range between 30000-50000 INR, depending upon the organisation's size.
Usually, newly set-up companies are asked to pay the lowest compared to the brands here from a period. The cost of a software patent in Hyderabad is the same, and it doesn’t differ as per the place of office of a patent but rather as per the category of applicant and software.
The process of filing for a patent involves documentation, legal consultation, a description of the software and a claim by the applicant. There can be two different parties in the application of the patent. One can be the patent applicant, and the other can be the inventor.
The person who is contributing in the creation of the software is the inventor of the software. An application for a software patent in Hyderabad offers monetary benefits to the claim holder, who is ultimately the applicant and not the inventor.
Though there is an exception to this situation where the inventor and applicant are the same thus, monetary benefits are available to the inventor who is an applicant for the patent. Research and deep analysis are the first two steps to understand software's patentability in Hyderabad.
Plus, it would be best to have a legal representative to ease the laws for you. A step that will level up the position in the market. Anyone aiming to file a software patent in Hyderabad should first consult an attorney. An expert who has served numerous companies' desired solutions. .
You can get a software patent in Hyderabad by physically applying to the patent office. However, you can always choose the most convenient option to avail yourself of through an online medium.
IPExcel can provide you with the best possible strategies to patent software or computer-related inventions in India and other countries. With its dedicated team, IPExcel 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 other countries.
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