In my previous post about the Samsung-Apple patent war in the tablet and smartphone market, I ranted about the curse of patents in the industry and how Judge Richard Posner, of the U.S. Court of Appeals expressed his disdain for patents in the industry as well.
Thus, I thought it may be useful to examine the issue of software patents in India – to lay down the present law on the subject. Thus, in the following paras, I will briefly examine whether software patents are allowed in India and the recent proposed changes to the policy and its eventual outcome.
The Indian Patent Act as of now still excludes only ‘computer programs per se’ from patentability. The issue of whether computer programs tied to certain hardware can be patented is a controversial one. In 2004, the President of India promulgated the Patents (Amendment) Ordinance (on December 27, 2004). The Ordinance split the sub-section 3k into two- sub-section 3(k) and 3(ka). The excluded subject matters as originally contained in Sub-section 3(k) were provided in the new Sub-section 3(ka). It included ‘a mathematical method or a business method or algorithms’. The amended Section 3(k) read as follows:
“(k) a computer programme per se other than its technical application to industry or a combination with hardware“.
This would have allowed computer software in combination with hardware to have fallen within the scope of patentability. However, the 2004 Patent Ordinance was rejected by the Parliament in 2005 and hence the expansion of the definition as contained in the Ordinance, did not find mention in the Patent (Amendment) Act of 2005.
Thus, it is clear that the interpretation that “computer programme per se” excludes “a computer programme that has technical application to industry” and “a computer programme in combination with hardware” is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that “technical application to industry” and “combination with hardware” do not make a computer programme patentable subject matter.
One may also refer to the recently released Manual of Patent Office Practice and Procedure (2011) which clarifies ambiguities in respect of patentability. Even the manual does not provide for patentability of computer software in combination with hardware. The text in the Manual is reproduced below.
f. If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at‗computer programme products‘ are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention.
Source: MANUAL OF PATENT OFFICE PRACTICE AND PROCEDURE (As modified on March 22, 2011) Page 91 onwards, available at <http://www.ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20pdf/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure.pdf>
Thus, the law as it stands now reverts to the original position of excluding computer program per se from patentability and does not provide an exemption for a computer program in combination with hardware.
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