India’s software patenting approach allows for judicious use of patent protection, resulting in the alleviation of the risks involved of trivial patents that would have otherwise choked the innovation and drive of the software industry.
India’s Information Technology sector is the most forthcoming in terms of export and research and development, with various IT sector hubs like Bengaluru, Hyderabad, Chennai, etc., present across the length and the breadth of the sub-continent, outsourcing most of the software. With such dynamism and rapid evolution in the IT and software region taking place, innovation needs to be boosted through a proper administration of software patenting that will augment the pace of research in the area and enhance productivity.
Today, India’s software patenting machinery is in accordance with the revised guidelines of 2016 that also resonate in the original Indian Patents Act, 1970 guidelines for software patents. However, the need for these revised guidelines arose due to the ineffectual and flawed guidelines that were issued on August 21, 2015. The subsequent sections of the article will deal with the unforeseeable evolution that took place in the software patenting policies since the inception of the Indian Patents Act of 1970 and discuss the changing guidelines in detail.
INDIA’S SOFTWARE PATENTS LAW
According to Indian Patents Act, 1970:
In accordance with the Indian Patents Act, 1970 only those software innovations can be patented under Section 3 which have been developed in combination with a specific kind of hardware. Software innovations in isolation or patenting of software ‘per se’ is clearly outlawed. Thus, in order to apply for patent applications for software, the hardware should be either fully or partially dependent on this inventive software that is averring for the patent rights.
The Indian Patent Office issued guidelines on 21 August, 2015 that allowed software to be patented ‘per se’. These guidelines were in total contradiction to the statutory provisions of 1970 that proscribed patenting software ‘per se’. Regulation 5.1 of this notification legitimized the patenting of software that is new in combination with a hardware that isn’t new. This was not previously the case where only new software fixed with new hardware could be patented. In addition to this, the new regulation also specified that any software innovated which is in furtherance of a ‘technical effect’ is patentable.
In connection with the above rule, regulation 6.1 laid down the factors to determine whether a software causes the furtherance of a technical effect. The criteria formulated to determine the technical advancement was very vaguely constructed which would have set up an avenue for floods of patent applications, in turn hindering the growth of the IT industry in India with only the rich firms and industries benefitting as they possess the money capital to handle patent litigation in comparison to smaller enterprises.
According to the ambit of the revised guidelines of 2016:
The new guidelines, which have been warmly greeted by several civil society organisations, have finally reverted to the old statutory provisions which do not grant patents to only ‘computer related programs’ or software ‘per se’. These guidelines have also brought about clarity to the criterion of furtherance of technical effect by laying down a comprehensive test which will identify whether the invention in practicality has any economic significance or actual technical progressiveness in it or not. These guidelines have also added that if the software doesn’t possess any inherent industrial applicability, then it cannot acquire patents. For instance, since a technique of playing a game involves intellectual activity and doesn’t really show industrial applicability, it is not patentable. These amended directives also include the rule to disclose and break down the entire invention on pen and paper so as to analyse the veracity of its claim for patent applicability. If the disclosure requirements are adequately met, the patent application further proceeds for examination. The last requirement to be satisfied in the new regulations charted out in these guidelines is that the ingredients of the patent claim shall be verified and admissibility won’t be on the basis of the type or form of the claim or application as it can be misleading.
Even though India has revised and re-revised its software patent regulations throughout the years, they are more firmly in place at the present and disallow erosion of the software industry in the country by not sanctioning laid-back acceptance of patent claims. India’s methodology is more pragmatic when it is compared to international software patenting norms, as internationally software patenting follows a confused approach, making it less stringent to obtain patents for software.