Indian Law on Software Patentability

Software programs have become an indispensable part of the world due to the increased efficiency, effective & safe interactions, and improved functionalities. Businesses are increasingly relying on software innovation to leverage growth. Globally, India has an established footprint in the Information Technology (IT) sector. The Indian government plans to boost its contribution to the global software product industry by the year 2025, as per the National Policy on Software Products, 2019. The report specifically mentions how Intellectual Property (IP) creation is one of those characteristics of software products which helps in increasing the overall value.

Under the Indian IP regime, a software can be protected as a copyright or a patent. Considering that copyright provides protection only for software code, the most effective way to protect a software is under the patent law as it protects the basic concept behind the software. Although a tad complex, but the grant of patent for software is possible in India. For a software to qualify for patent protection, it must first satisfy the three major components of a patentable invention- novelty, inventive step, and industrial applicability like any other invention. It comes with its set of challenges but previously, Indian patent has been granted for software programs like – Google’s Location History Filtering patent, Oracle International Cooperation’s A System and Method for Preparing Compending Blogs, Microsoft Corporation’s Disaggregated Secure Execution Environment, etc.

Position of patent law on software programs

The Indian Patent Act of 1970 discusses the triple test which makes an invention patentable. As per the statute, ‘novelty’ suggests that the invention or technology should not have been created, anticipated, published, used, or exist in public domain anywhere in the world before filing the patent application. ‘Inventive step’ means that the invention must employ some technical advancement over the existing state of art, enhance economic significance and/or is non-obvious in comparison with the existing technology. It must be conceptually inventive, unperturbed by the common general knowledge, and is different from similar older inventions in a way that it is devoid of the obvious. Further, the requirement of ‘industrial applicability’ implies that the invention is capable of being manufactured or used in industry.

In addition to these criteria, the invention must be a patentable subject matter and its disclosure must meet the formal and substantive standards of a patent application. The statute expressly states that a software or computer program as such is not patentable in India. More specifically, the Patent Act goes on to say that “a mathematical or business method or a computer program per se or algorithms" are not inventions and therefore not patentable. While introducing the aforesaid provision, the report of joint parliamentary committee offered some clarity for the words ‘per se’ by stating that "… sometimes the computer program may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programs as such are not intended to be granted patent.” The latest Guidelines for Examination of Computer related Inventions (CRIs) which pertain to patentability of computer programs (including software) provide further clarity in this regard.

In practice, a tangible component must accompany the invented software to make it patentable. Wherever a combination of hardware & software satisfies the patentability requirements and achieves a further technical effect while solving a technical problem, the patent application seeking protection for a software is likely to be granted in India.

Why is patent protection for software crucial?

The Indian IP regime offers protection to software and computer programs under the copyright law as soon as the work is created. The copyright protection is available by default and registration is not mandatory but recommended from the enforcement point of view. Inventors and stakeholders generally stress upon the need for the availability of patent protection on software. This is because a patent offers a broader protection over an invention, barring anyone else from manufacturing, selling, or using it in any way. This is especially beneficial for independent and small-scale creators who can eliminate competition from larger entities with better resources. With a patent, come licensing rights. These rights can be used by the inventor to benefit commercially. For a business, a patent offers international visibility and recognition which can lead to rewarding alliance. Overall, the benefits of a patent may end up outweighing the costs of procuring one.

On the other hand, protecting a software only under a copyright limits the scope of safety. It can be enforced only when the source code of software is literally copied and does not adequately protect the invention. In this digital era, where a user’s safety can be compromised within seconds, piracy is spiking, and regular attempts to defraud innocent users are made – it becomes quintessential to provide stronger intellectual property protection to software creations.

Software or computer programs are adjudged based on the technical solution they provide, in addition to the other patentability criteria mentioned above. Currently, the language of the legislature may seem ambiguous and slightly divergent practices may be prevailing across four branches of patent offices in India. In such a scenario, it becomes the duty of the engineers, designers, developers, and inventors to seek patent protection for software programs and whenever possible get judicial precedents to have more certainty about software patents. Not only will this provide an opportunity for the Indian Patent Office to harmonize its practice and procedures, but this will also create a welcoming environment for aspiring inventors and the Indian software industry at large.