In India Section 3 of the Patent Act, 1970 enumerates a list of things that are not considered as inventions (and are hence not patentable). Section 3(k) refers to a ‘computer programe per se’. This means that you cannot get a patent for a software program by itself in India. However, you can get a software patent in India for a software invention in conjunction with hardware.
The logic behind denying patents for software per se in India is to promote innovation. If software, per se, is patented a majority of the software inventions will be owned by a minority of firms. This scenario is unimaginable in a developing country like India, where programmers must be given the freedom to innovate. To develop better software’s programmers or coders must have access to the open source software. Keeping in line with this spirit, Section 3(k) does not allow software patents without hardware applicability.
At this point, it is important to note that Section 3(k) does not intend to place a blanket ban on software patents in India. It only says that computer programs per se are not patentable. The phrase ‘computer programs per se’ has not been defined and it has therefore been the source of some ambiguity. To this end, the Government passed Guidelines that help define the extent or rather the manner in which software inventions are patentable.
The initial Guidelines issued by the Government on August 21, 2015, deviated from Section 3(k) insofar as they allowed software patents per se. These guidelines were a cause of worry to the software industry. According to these Guidelines, software could be patented as long as it produced a ‘further technical effect’. The phrase ‘further technical effect’ was not defined, leaving it to the judgment of the patent Examiners to determine whether a software invention produced a further technical effect or not.
Upon receiving complaints by a group led by SFLC.in, iSPRIT, and Knowledge Commons, the Indian Patent Office stayed the Guidelines on December 14, 2015.
Recently (February 19, 2016) the Government issued new Guidelines for software patents in India. (http://www.ipindia.nic.in/iponew/GuidelinesExamination_CRI_19February2016.pdf )
Software per se cannot be patented
Software can be patented in combination with a new hardware. This means that any invention has to relate to novel software as well as novel hardware, for it to be patentable.
In order to be patentable software must have industrial application.
Therefore, in answer to the main question; can we get software patent in India? Yes. You can get a patent for a software invention in India. You only have to ensure that the contribution (invention) must lie in both, the computer programme as well as the hardware. A software invention is patentable in conjunction with hardware.
Getting software patents in India for software inventions is a reality. Below are some examples of software patents that are granted in India.
|Apple Inc||IN 263108||Unlocking A Device By Performing Gestures On An Unlock Image||07/10/2014|
|Samsung Electronics Co Ltd||IN 255400||A System And Method For Data Delivery In Conjunction With A Hybrid Automatic Retransmission Mechanism In CDMA Communication Systems||18/02/2013|
|Google Technology Holdings Llc||IN 245716||A Method For Indexing Documents And An Information Retrieval System Thereof||31/01/2011|
|Oracle International Corporation||IN 270721||Dynamic Call Characteristic Control On A Per Call Basis||27/01/2016|
Finally, the latest guidelines reiterate the statutory provision with respect to software patent in India. For a developing country like India, denying patents for only novel software without a hardware goes a long way in encouraging and enabling innovation in the software industry. At the same time allowing patenting of novel software in conjunction with hardware gives ample incentive for the inventors.