An Overview of Software program Patenting



The idea of “mental property” in India over the previous couple of years has taken on some epic proportions for plenty of causes. One of many major causes, attributable to the rising consciousness among the many city Indian inhabitants, is of the importance and, extra importantly, the business advantages in defending its mental property rights each inside and out of doors India. And underneath conventional ideas of mental property safety, patent regulation is to encourage scientific analysis, new know-how and industrial progress. The elemental precept of patent regulation is that the patent is granted just for an invention i.e. new and helpful the mentioned invention should have novelty and utility. The grant of patent thus turns into of business property and in addition referred to as an mental property. And the pc software program is a comparatively new recipient of patent safety.

The time period “Patent” has its origin from the time period “Letter Patent”. This expression ‘Letter Patent’ meant open letter and had been devices underneath the Nice Seal of King of England addressed by the Crown to all the topics at giant during which the Crown conferred sure rights and privileges on a number of people within the kingdom. It was within the later a part of the 19th century new innovations within the area of artwork, course of, methodology or method of manufacture, equipment and different substances produced by producers had been on elevated and the inventors grew to become very a lot that the innovations completed by them shouldn’t be infringed by anybody else by copying them or by adopting the strategies utilized by them. To save lots of the pursuits of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.

With respect to patentability of software program -related innovations, it’s at the moment one of the crucial heated areas of debate. Software program has develop into patentable lately in most jurisdictions (though with restrictions in sure nations, notably these signatories of the European Patent Conference or EPC) and the variety of software program patents has risen quickly.


The time period “software program” doesn’t have a exact definition and even the software program industries fails to offer an particular definition. However it’s principally used to explain all the several types of laptop applications. Laptop applications are principally divided into “software applications” and “working system applications”. Software applications are designed to do particular duties to be executed via the pc and the working system applications are used to handle the interior capabilities of the pc to facilitate use of software program.

Although the time period ‘Software program patent’ doesn’t have a universally accepted definition. One definition prompt by the Basis for a Free Info Infrastructure is software program patent is a “patent on any efficiency of a pc realized by way of a pc program”.

In keeping with Richard Stallman, the co-developer of the GNU-Linux working system and proponent of Free Software program says, “Software program patents are patents which cowl software program concepts, concepts which you’d use in creating software program.

That’s Software program patents check with patents that might be granted on merchandise or processes (together with strategies) which embrace or might embrace software program as a major or no less than crucial a part of their implementation, i.e. the shape during which they’re put in follow (or used) to provide the impact they intend to supply.

Early instance of a software program patent:

On 21st Sep 1962, a British patent software entitled “A Laptop Organized for the Automated Resolution of Linear Programming Issues” was filed. The invention was involved with environment friendly reminiscence administration for the simplex algorithm, and could also be applied by purely software program means. The patent was granted on August 17, 1966 and appears to be one of many first software program patents.


Software program has historically been protected underneath copyright regulation since code suits fairly simply into the outline of a literary work. Thus, Software program is protected as works of literature underneath the Berne Conference, and any software program written is mechanically lined by copyright. This enables the creator to stop one other entity from copying this system and there may be usually no must register code to ensure that it to be copyrighted. Whereas Software program Patenting has lately emerged (if solely within the US, Japan and Europe) the place, Patents give their homeowners the best to stop others from utilizing a claimed invention, even when it was independently developed and there was no copying concerned.

Additional, it needs to be famous that patents cowl the underlying methodologies embodied in a given piece of software program. On the opposite copyright prevents the direct copying of software program, however don’t stop different authors from writing their very own embodiments of the underlying methodologies.

The problems concerned in conferring patent rights to software program are, nevertheless, much more complicated than taking out copyrights on them. Particularly, there are two challenges that one encounters when coping with software program patents. The primary is in regards to the instrument of patent itself and whether or not the style of safety it confers is suited to the software program business. The second is the character of software program, and whether or not it needs to be topic to patenting.

Nonetheless, points concerned in conferring patent rights to software program are much more complicated than taking out copyrights on them. Particularly, there are two challenges that one encounters when coping with software program patents. The primary is in regards to the instrument of patent itself and whether or not the style of safety it confers is suited to the software program business. The second is the character of software program and whether or not it needs to be topic to patenting.

a) Totally different Topic Issues

Copyright safety extends to all unique literary works (amongst them, laptop applications), dramatic, musical and inventive works, together with movies. Below copyright, safety is given solely to the actual expression of an concept that was adopted and never the concept itself. (For example, a program so as to add numbers written in two completely different laptop languages would rely as two completely different expressions of 1 thought) Successfully, impartial rendering of a copyrighted work by a 3rd celebration wouldn’t infringe the copyright.

Typically patents are conferred on any ‘new’ and ‘helpful’ artwork, course of, methodology or method of manufacture, machines, home equipment or different articles or substances produced by manufacture. Worldwide, the perspective in direction of patentability of software program has been skeptical.

b) Who might declare the best to a patent /copyright?

Typically, the creator of a literary, inventive, musical or dramatic work mechanically turns into the proprietor of its copyright.

The patent, alternatively is granted to the primary to use for it, no matter who the primary to invent it was. Patents value some huge cash. They value much more paying the legal professionals to put in writing the appliance than they value to really apply. It takes sometimes some years for the appliance to get thought-about, though patent workplaces do an especially sloppy job of contemplating.

c) Rights conferred

Copyright regulation offers the proprietor the unique proper to breed the fabric, situation copies, carry out, adapt and translate the work. Nonetheless, these rights are tempered by the rights of truthful use which can be found to the general public. Below “truthful use”, sure makes use of of copyright materials wouldn’t be infringing, equivalent to use for educational functions, information reporting and many others. Additional, impartial recreation of a copyrighted work wouldn’t represent infringement. Thus if the identical piece of code had been independently developed by two completely different firms, neither would have a declare in opposition to the opposite.

A patent confers on the proprietor an absolute monopoly which is the best to stop others from making, utilizing, providing on the market with out his/her consent. Basically, patent safety is a far stronger methodology of safety than copyright as a result of the safety extends to the extent of the concept embodied by a software program and injuncts ancillary makes use of of an invention as effectively. It could weaken copyright in software program that’s the base of all European software program growth, as a result of impartial creations protected by copyright could be attackable by patents. Many patent purposes cowl very small and particular algorithms or methods which are utilized in all kinds of applications. Often the “innovations” talked about in a patent software have been independently formulated and are already in use by different programmers when the appliance is filed.

d) Length of safety

The TRIPS settlement mandates a interval of no less than 20 years for a product patent and 15 years within the case of a course of patent.

For Copyright, the settlement prescribes a minimal interval of the lifetime of the creator plus seventy years.


Substantive regulation concerning the patentability of software program and computer-implemented innovations, and case regulation deciphering the authorized provisions, are completely different underneath completely different jurisdictions.

Software program patents underneath multilateral treaties:

o Software program patents underneath TRIPs Settlement

o Software program patents underneath the European Patent Conference

o Laptop applications and the Patent Cooperation Treaty

Software program patenting underneath TRIPs Settlement

The WTO’s Settlement on Commerce-Associated Facets of Mental Property Rights (TRIPs), significantly Article 27, are topic to debate on the worldwide authorized framework for the patentability of software program, and on whether or not software program and computer-implemented innovations needs to be thought-about as a area of know-how.

In keeping with Artwork. 27 of TRIPS Settlement, patents shall be obtainable for any innovations, whether or not merchandise or processes, in all fields of know-how, supplied that they’re new, contain an ingenious step and are able to industrial software. (…) patents shall be obtainable and patent rights satisfying with out discrimination as to the place of invention, the sector of know-how and whether or not merchandise are imported or regionally produced.”

Nonetheless, there have been no dispute settlement procedures concerning software program patents. Its relevance for patentability within the computer-implemented enterprise strategies, and software program data know-how stays unsure, for the reason that TRIPs settlement is topic to interpretation.

Software program patents underneath the European Patent Conference

Inside European Union member states, the EPO and different nationwide patent workplaces have issued many patents for innovations involving software program for the reason that European Patent Conference (EPC) got here into power within the late 1970s. Article 52 EPC excludes “applications for computer systems” from patentability (Artwork. 52(2)) to the extent patent software pertains to a pc program “as such” (Artwork. 52(three)). This has been interpreted to imply that any invention which makes a non-obvious “technical contribution” or solves a “technical downside” in a non-obvious manner is patentable even when a pc program is used within the invention.

Laptop-implemented innovations which solely clear up a enterprise downside utilizing a pc, somewhat than a technical downside, are thought-about unpatentable as missing an ingenious step. However, the truth that an invention is beneficial in enterprise doesn’t imply it isn’t patentable if it additionally solves a technical downside.

Laptop applications and the Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is a global patent regulation treaty, which offers a unified process for submitting patent purposes to guard innovations. A patent software filed underneath the PCT is named a global software or PCT software. Below the PCT, the worldwide search and the preliminary examination are performed by Worldwide Looking Authorities (ISA) and Worldwide Preliminary Inspecting Authority (IPEA).


Nonetheless, earlier than we begin hailing the arrival of a brand new period and equating the patenting of software program in India it might be effectively price our whereas to take a pause and look at the realities of software program patenting. We may do that by taking a look at examples of nations during which software program patenting has already develop into the order of the day, equivalent to within the US and Japan .

United States

The USA Patent and Trademark Workplace (USPTO) has historically not thought-about software program to be patentable as a result of by statute patents can solely be granted to “processes, machines, articles of manufacture, and compositions of matter”. i.e. Particularly, patents can’t be granted to “scientific truths” or “mathematical expressions” of them. The USPTO maintained the place that software program was in impact a mathematical algorithm, and due to this fact not patentable, into the 1980s. This place of the USPTO was challenged with a landmark 1981 Supreme Court docket case, Diamond v. Diehr. The case concerned a tool that used laptop software program to make sure the proper timing when heating, or curing, rubber. Though the software program was the integral a part of the system, it additionally had different capabilities that associated to actual world manipulation. The court docket then dominated that as a tool to mould rubber, it was a patentable object. The court docket basically dominated that whereas algorithms themselves couldn’t be patented, gadgets that utilized them may.

However in 1982 the U.S. Congress created a brand new court docket i.e the Federal Circuit to listen to patent instances. This court docket allowed patentability of software program, to be handled uniformly all through the US. Due to a couple landmark instances on this court docket, by the early 1990s the patentability of software program was effectively established.

Furthermore, A number of profitable litigations present that software program patents are actually enforceable within the US. That’s the reason, Patenting software program has develop into widespread within the US. As of 2004, roughly 145,000 patents had issued within the 22 courses of patents protecting laptop applied innovations.


Software program is instantly patentable in Japan. In varied litigations in Japan, software program patents have been efficiently enforced. In 2005, for instance, Matsushita gained a court docket order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 protecting phrase processing software program.

Indian Place

With respect to laptop software program, in Patents (Modification) Act, 2002, the scope of non-patentable material within the Act was amended to incorporate the next: “a mathematical methodology or a enterprise methodology or a pc programme per se or algorithms”.

Nonetheless, the latest modification adjustments (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has got here into impact from 1st Jan., 2005. Other than change in prescribed drugs and agro chemical substances, one of many seminal amendments this Ordinance seeks to carry is to allow the patenting of embedded software program.

Therefore, the modification implies that whereas a mathematical or a enterprise methodology or an algorithm can’t be patented, a pc programme which has a technical software in any business or which may be integrated in may be patented. Since any business software program has some business software and all purposes may be construed as technical purposes, clearly it opens all software program patenting.

In any case, any firm in search of to file a patent software for software program underneath the Ordinance ought to be certain that its invention firstly, follows the three fundamental assessments:

o Creative Steps

o Novelty

o Usefulness

Subsequently, it will be significant that the software program sought to be protected will not be merely a brand new model or an enchancment over an current code.

Additional, in accordance with the particular necessities of the Ordinance with regard to patentability of software program, the software program ought to essentially have a technical software to the business or be intrinsic to or “embedded” in . That is to stop in opposition to any future litigation or claims of infringements being raised, which is a definite chance even after a patent has been granted.


India for its half appears to have adopted the extra conservative strategy of the European patenting norms for software program. However the Ordinance positively has its use and relevance in immediately’s India, significantly for our rising home semi- conductor business. This, together with judicial tempering may positively guarantee a considered use of patent safety whereas permitting the business to develop via improvements and innovations, thereby, mitigating the dangers of trivial patents chocking the life out of actual improvements and innovations. That is the explanation a patent ought to all the time be handled as a “double edged sword”, to be wielded with warning and sensitivity.

Now whether or not, in actuality this can be applied on a inflexible foundation or will develop into broad in scope via software (as within the U.S.), and, extra importantly, whether or not the Ordinance would, actually, end in elevated innovation and innovations within the software program business, stays to be seen.