Patent protection software in India


Patent protection for software in India


Patents from software related inventions are very controversial these days. In the early 1960s and 1970s, the standard response was that software was not the subject of innocence protection. But in subsequent years, the United States and Japan expanded the scope of patent protection. But many countries, including Europe and India, are reluctant to grant patents for the computer program for fear of hindering technological advances in the troubled industry. Software patent supporters claim that patent protection will encourage, and will encourage, more innovation in the software industry. Opponents insist that a software patent will stifle innovation, because the characteristics of the software are fundamentally different from old industrial engineering innovations, such as mechanical and civil engineering.

Protect software related to innovations

WIPO defined the term computer program as follows: “a set of guidelines that, when combined in a readable medium on a machine, can cause a device to process information to indicate a job, task, or result, implement it, or achieve it.” The software can be protected either by copyright, patent, or both. Patent protection for the program has advantages and disadvantages compared to copyright protection. There have been many discussions on software patent protection as information technology has been developed and more programs have been developed. This is mainly due to the characteristics of the program, which are intangible and also have great value. You need massive resources to develop new and useful programs, but they can be easily copied and easily transferred online all over the world. Also due to the development of e-commerce, there is a desire to register patents for business methods.

Computer software remains intangible even after it is actually used. This meaning creates difficulties in understanding how a computer program can be a patent subject. The questions remain about whether the computer software is patentable and to what degree it is not resolved.

More than half of the 176 countries in the world that grant patents allow software patents, at least to some extent. There is a global trend in favor of adopting patent protection for software-related inventions. This trend accelerated after the adoption of the TRIPS Agreement in 1994, which requires member states to provide patent protection for inventions in all areas of technology, but it does not rise to the degree of mandatory patent protection for programs per se. Developing countries that did not provide this protection when the TRIPS Agreement entered into force (January 1, 1995) until January 1, 2005, should amend their laws, if necessary, to meet this requirement.

European Patent Agreement

The European Patent Convention is the treaty that created the European Patent Organization (EPO). EPO grants patents that are valid in those member countries specified in the EPO application and then perfect in those countries. EPO patent enforcement is obtained through national courts in different countries.

The program is copyright protected and excluded from patent protection in Europe. In accordance with Article 52 (1) of the European Patent Convention (EPC), European patents are granted for any industrially applicable inventions, which are new and include an innovative step. Article 52 (2) excludes schemes, rules and methods for performing mental business, playing games or doing business, and programming computers from patents. Article 52 (3) says that the prohibition is only related to programs 'as such.'

For several years after EPC implementation, the isolated program was not patentable. In order to be patentable, the invention must reside in this group in the device. Then came the test case, EPO T26 / 86, which is a patent issue for the hardware and software group where the hardware itself is not new. It comes to patenting an X-ray machine to control a programmed computer to improve the device's operating characteristics for its various types of X-ray procedures. The patent office rejected the invention. The Technical Appeals Board (TBoA) did not approve and endorse the patent, saying that the invention of the patent could consist of technical and non-technical features (such as hardware and software). It was not necessary to apply relative weights to these different types of features.

Recent cases

1. Ficom case

The VICOM case has authority over the meaning of "computer software as such" and what constitutes "mathematical method." The patent application relates to a method and device for processing digital images, which includes a mathematical calculation of the numbers representing the image points. The algorithms were used to soften or increase the contrast between adjacent data elements in the array. The Appeals Board considered that a computer that uses software to perform a technical operation does not claim a computer program in this manner.

2. IBM cases

A major further development occurred in 1999, when the cases T935 / 97 and T1173 / 97 were resolved upon appeal to TBOA. In these cases, TBOA determined that the program is not a “program as such” if it had a technical impact, and that claims to the programs themselves could be accepted if these criteria were met. Technical impact can result from an improvement in computer performance or features, or the use of facilities such as a computer system with limited access to memories, which stimulates better access thanks to computer programming. Follow resolutions T935 / 97 and T1173 / 97 elsewhere in Europe.

The European Patent Office's European Technical Appeals Board issued two important decisions regarding business method patents (BMIs). Business methods Inventions can be defined as inventions that relate to the ways or system of doing business using computers or internal networks.

3. Queue system / Peterson case

In this case, the customer service queue sequencing system in the multiplex service points was considered patented. The Technical Council considered that the problem to be solved is the means of interaction of the components of the system, that this is a technical problem, and that its solution is patentable.

Sohe's case

The Sochi case opened a method for obtaining a patent for the method of work. The patent was a computer system for multiple types of independent management including financial and inventory management, and a way to operate the aforementioned system. The court said it was patented because "technical considerations were applied" and "technical problems were solved." Consequently, the Technical Council considered the invention patentable; it was dealing with a method of doing business.

The most common principle governing the scope of patent protection for software-related inventions is the "technical implications" principle first published by the European Patent Office (EPO). This principle generally states that the software is patentable if the application has a "technical effect". EPO Software Patent Law tends to be somewhat more liberal than the individual laws of some EPO member states. Thus, a person who wishes to register a software-related patent in Europe should generally submit an EPO application.

Indian Patent Law

As in Europe, also in India, the “technical implications” doctrine governs the scope of patent protection for software-related inventions. Patents Act 1970, as amended by Law 38 of 2002, excludes software patents per se. Section 3 (k) of the Patent Act states that “the mathematical or commercial method, the computer program itself or the algorithm” is not a patented invention. Computer software products claimed as "computer software product in a computer-readable medium", "computer-readable storage medium with software registered on it", etc., claims are not patented as related to the software itself, regardless of About the way it is stored. On the other hand, “the way to display the contents to display the contents on the screen”, “a way to control the information processing device, to communicate over the Internet with an external device”, “a way to transfer data” over an open communication channel on a wireless device that opens and closes a communication channel selectively on a network Wireless, and every wireless device including a computer platform includes a variety of device resources that selectively use a communication channel to communicate with other devices across the network. "It is patented, although all of the above methods use computer programs to operate it, but computer software a thousand Cree only in the context of not entitled to a patent.


In India the software itself is not patented. Inventions related to the application of a computer program or program are patented under the Indian Patent Act 1970 when they are claimed by a combination of hardware and software components for a computer that provides "technical progress" over the previous technology. It is necessary for the applicant to describe the "technical contribution" to prior art when the invention relates to programs. The technical problem, which must be solved by the invention, must be sufficiently clarified with regard to how the devices are controlled by the software to overcome the previously described problem. The “technical nature” of the invention must be clearly indicated in the claims.


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