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Sunday, October 26, 2008

Software Patents India

Unlike many countries computes software still are not included in the definitions of patentable invention under Indian Patent Law. Though Indian Govt. in April 2005 brought an ordinance to include computer softwares imbedded in hardware like computer, mobile, televisions etc. and having industrial application under the definition of patentable invention by amending the clause (k) of section 3 under chapter II of Indian Patent Act, 1970 but under pressure of the software professional lobby did not enacted the same. The relevant provision under the Indian Patents Act reads as under:
CHAPTER II
INVENTIONS NOT PATENTABLE
3. What are not inventions.- the following are not inventions within the meaning of this act,--……
(k) a mathematical or business method or computer programe per se or algorithms;
But still a number of applications relating to inventions pertaining to the computer software are filed every year in India and by clever camouflaging of the words these applications are successfully proceeded to the stage of grant of patents.
Indian Patent law technically bars grant of patents pertaining to the inventions relating to computer softwares "per se", so if the invention is shown relating to a computer hardware or some form of generic hardware in embedded is patentable. All that is required that method claims should refer to a hardware component or there shall be inclusion of hardware or device in method claims. New Draft manual of Patents also allows invention relating to computer software if there is a hardware feature in embedded form to establish dependency of method steps on hardware device.
Though even after several rounds of discussions there is nothing concrete that is coming our from the meeting as regards to India's stand on computer software. There is still strong likelihood of Indian Government relenting to include the computer softwares under the category of patentable inventions as a large number of computer softwares now days are invented by the Indian software professionals, but at the same time there is lot of opposition from software programmers who are oppose to any sort of restriction to use on software programmes.

Stands of Software programmers can not be outrightly rejected by Government but at the same time it has to be understood that unless there would be any incentive from development in computer software that would also discourage further research and development in the field and would ultimately harm the industry itself. There has been suggestions to grant Patent to software programmes and reduced the period of grant at the same time, which could be win-win situation to both parties.

Further one by filing patent application in India in relation to software inventions can hope that in near future Indian Government enacts the desirable changes to grant patents to inventions pertaining to the computer softwares. Therefore anyone interested in filing a PCT application national phase or Convention application has to more careful at the time of filing original application for the first time in a foreign country. The language of specification as well as claims has to be accordingly modified at the time of filing of original application and there shall be sufficient dependency of software features on hardware components to make subject matter patentable in India.

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