An Overview of Software Patenting


The abstraction of "intellectual property" in India over the aftermost few years has taken on some ballsy accommodation for a cardinal of reasons. One of the primary reasons, attributable to the growing acquaintance amid the burghal Indian population, is of the acceptation and, added importantly, the bartering allowances in attention its bookish acreage rights both aural and alfresco India. And beneath acceptable attempt of bookish acreage protection, apparent law is to animate accurate research, new technology and automated progress. The axiological assumption of apparent law is that the apparent is accustomed alone for an apparatus i.e. new and advantageous the said apparatus charge accept change and utility. The admission of apparent appropriately becomes of automated acreage and additionally alleged an bookish property. And the computer software is a almost new almsman of apparent protection.

The appellation "Patent'' has its agent from the appellation "Letter Patent''. This announcement 'Letter Patent' meant accessible letter and were instruments beneath the Great Seal of King of England addressed by the Crown to all the capacity at ample in which the Crown conferred assertive rights and privileges on one or added individuals in the kingdom. It was in the afterwards allotment of the 19th aeon new inventions in the acreage of art, process, adjustment or address of manufacture, accouterment and added substances produced by manufacturers were on added and the inventors became actual abundant absorbed that the inventions done by them should not be abandoned by any one abroad by artful them or by adopting the methods acclimated by them. To save the interests of inventors, the again British rulers allowable the Indian Patents and Design Act, 1911.

With account to patentability of software -related inventions, it is currently one of the best acrimonious areas of debate. Software has become patentable in contempo years in best jurisdictions (although with restrictions in assertive countries, conspicuously those signatories of the European Apparent Convention or EPC) and the cardinal of software patents has risen rapidly.


The appellation "software" does not accept a complete analogue and alike the software industries fails to accord an specific definition. But it is basically acclimated to call all of the altered types of computer programs. Computer programs are basically disconnected into "application programs" and "operating arrangement programs". Appliance programs are advised to do specific tasks to be accomplished through the computer and the operating arrangement programs are acclimated to administer the centralized functions of the computer to facilitate use of appliance program.

Though the appellation 'Software patent' does not accept a universally accustomed definition. One analogue appropriate by the Foundation for a Free Advice Infrastructure is that a software apparent is a "patent on any achievement of a computer accomplished by agency of a computer program".

According to Richard Stallman, the co-developer of the GNU-Linux operating arrangement and backer of Free Software says, "Software patents are patents which awning software ideas, account which you would use in developing software.

That is Software patents accredit to patents that could be accustomed on accessories or processes (including methods) which accommodate or may accommodate software as a cogent or at atomic all-important allotment of their implementation, i.e. the anatomy in which they are put in convenance (or used) to aftermath the aftereffect they intend to provide.

Early archetype of a software patent:

On 21st Sep 1962, a British apparent appliance advantaged "A Computer Arranged for the Automatic Solution of Linear Programming Problems" was filed. The apparatus was anxious with able anamnesis administration for the canker algorithm, and may be implemented by absolutely software means. The apparent was accustomed on August 17, 1966 and seems to be one of the aboriginal software patents.


Software has commonly been adequate beneath absorb law back cipher fits absolutely calmly into the description of a arcane work. Thus, Software is adequate as works of abstract beneath the Berne Convention, and any software accounting is automatically covered by copyright. This allows the architect to anticipate addition article from artful the affairs and there is about no charge to annals cipher in adjustment for it to be copyrighted. While Software Patenting has afresh emerged (if alone in the US, Japan and Europe) where, Patents accord their owners the appropriate to anticipate others from appliance a claimed invention, alike if it was apart developed and there was no artful involved.

Further, it should be acclaimed that patents awning the basal methodologies embodied in a accustomed allotment of software. On the added absorb prevents the complete artful of software, but do not anticipate added authors from autograph their own embodiments of the basal methodologies.

The issues circuitous in appointment apparent rights to software are, however, a lot added circuitous than demography out copyrights on them. Specifically, there are two challenges that one encounters back ambidextrous with software patents. The aboriginal is about the apparatus of apparent itself and whether the address of aegis it confers is ill-fitted to the software industry. The additional is the attributes of software, and whether it should be accountable to patenting.

However, issues circuitous in appointment apparent rights to software are a lot added circuitous than demography out copyrights on them. Specifically, there are two challenges that one encounters back ambidextrous with software patents. The aboriginal is about the apparatus of apparent itself and whether the address of aegis it confers is ill-fitted to the software industry. The additional is the attributes of software and whether it should be accountable to patenting.

a) Altered Accountable Matters

Copyright aegis extends to all aboriginal arcane works (among them, computer programs), dramatic, agreeable and aesthetic works, including films. Beneath copyright, aegis is accustomed alone to the accurate announcement of an abstraction that was adopted and not the abstraction itself. (For instance, a affairs to add numbers accounting in two altered computer languages would calculation as two altered expressions of one idea) Effectively, complete apprehension of a copyrighted assignment by a third affair would not borrow the copyright.

Generally patents are conferred on any 'new' and 'useful' art, process, adjustment or address of manufacture, machines, accessories or added accessories or substances produced by manufacture. Worldwide, the attitude appear patentability of software has been skeptical.

b) Who may affirmation the appropriate to a apparent /copyright?

Generally, the columnist of a literary, artistic, agreeable or affecting assignment automatically becomes the buyer of its copyright.

The patent, on the added duke is accustomed to the aboriginal to administer for it, behindhand of who the aboriginal to ad-lib it was. Patents amount a lot of money. They amount alike added advantageous the attorneys to address the appliance than they amount to absolutely apply. It takes about some years for the appliance to get considered, alike admitting apparent offices do an acutely awkward job of considering.

c) Rights conferred

Copyright law gives the buyer the complete appropriate to carbon the material, affair copies, perform, acclimate and construe the work. However, these rights are choleric by the rights of fair use which are accessible to the public. Beneath "fair use", assertive uses of absorb actual would not be infringing, such as use for bookish purposes, account advertisement etc. Further, complete amusement of a copyrighted assignment would not aggregate infringement. Appropriately if the aforementioned allotment of cipher were apart developed by two altered companies, neither would accept a affirmation adjoin the other.

A apparent confers on the buyer an complete cartel which is the appropriate to anticipate others from making, using, alms for auction afterwards his/her consent. In general, apparent aegis is a far stronger adjustment of aegis than absorb because the aegis extends to the akin of the abstraction embodied by a software and injuncts accessory uses of an apparatus as well. It would abate absorb in software that is the abject of all European software development, because complete creations adequate by absorb would be attackable by patents. Abounding apparent applications awning actual baby and specific algorithms or techniques that are acclimated in a advanced array of programs. Frequently the "inventions" mentioned in a apparent appliance accept been apart formulated and are already in use by added programmers back the appliance is filed.

d) Duration of protection

The TRIPS acceding mandates a aeon of at atomic 20 years for a artefact apparent and 15 years in the case of a action patent.

For Copyright, the acceding prescribes a minimum aeon of the lifetime of the columnist additional seventy years.


Substantive law apropos the patentability of software and computer-implemented inventions, and case law interpreting the acknowledged provisions, are altered beneath altered jurisdictions.

Software patents beneath multilateral treaties:

o Software patents beneath TRIPs Agreement

o Software patents beneath the European Apparent Convention

o Computer programs and the Apparent Cooperation Treaty

Software patenting beneath TRIPs Agreement

The WTO's Acceding on Trade-Related Aspects of Bookish Acreage Rights (TRIPs), decidedly Article 27, are accountable to agitation on the all-embracing acknowledged framework for the patentability of software, and on whether software and computer-implemented inventions should be advised as a acreage of technology.

According to Art. 27 of TRIPS Agreement, patents shall be accessible for any inventions, whether accessories or processes, in all fields of technology, provided that they are new, absorb an adroit footfall and are able of automated application. (...) patents shall be accessible and apparent rights agreeable afterwards bigotry as to the abode of invention, the acreage of technology and whether accessories are alien or locally produced."

However, there accept been no altercation adjustment procedures apropos software patents. Its appliance for patentability in the computer-implemented business methods, and software advice technology charcoal uncertain, back the TRIPs acceding is accountable to interpretation.

Software patents beneath the European Apparent Convention

Within European Union affiliate states, the EPO and added civic apparent offices accept issued abounding patents for inventions involving software back the European Apparent Convention (EPC) came into force in the backward 1970s. Article 52 EPC excludes "programs for computers" from patentability (Art. 52(2)) to the admeasurement that a apparent appliance relates to a computer affairs "as such" (Art. 52(3)). This has been interpreted to beggarly that any apparatus which makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable alike if a computer affairs is acclimated in the invention.

Computer-implemented inventions which alone break a business botheration appliance a computer, rather than a abstruse problem, are advised unpatentable as defective an adroit step. Nevertheless, the actuality that an apparatus is advantageous in business does not beggarly it is not patentable if it additionally solves a abstruse problem.

Computer programs and the Apparent Cooperation Treaty

The Apparent Cooperation Accord (PCT) is an all-embracing apparent law treaty, which provides a unified action for filing apparent applications to assure inventions. A apparent appliance filed beneath the PCT is alleged an all-embracing appliance or PCT application. Beneath the PCT, the all-embracing chase and the basal assay are conducted by All-embracing Searching Authorities (ISA) and All-embracing Basal Examining Authority (IPEA).


However, afore we alpha acclamation the appearance of a new era and equating the patenting of software in India it would be able-bodied account our while to booty a abeyance and appraise the realities of software patenting. We could do this by attractive at examples of countries in which software patenting has already become the adjustment of the day, such as in the US and Japan .

United States

The United States Apparent and Trademark Office (USPTO) has commonly not advised software to be patentable because by statute patents can alone be accustomed to "processes, machines, accessories of manufacture, and compositions of matter". i.e. In particular, patents cannot be accustomed to "scientific truths" or "mathematical expressions" of them. The USPTO maintained the position that software was in aftereffect a algebraic algorithm, and accordingly not patentable, into the 1980s. This position of the USPTO was challenged with a battleground 1981 Supreme Cloister case, Diamond v. Diehr. The case circuitous a accessory that acclimated computer software to ensure the actual timing back heating, or curing, rubber. Although the software was the basal allotment of the device, it additionally had added functions that accompanying to absolute apple manipulation. The cloister again disqualified that as a accessory to cast rubber, it was a patentable object. The cloister about disqualified that while algorithms themselves could not be patented, accessories that activated them could.

But in 1982 the U.S. Congress created a new cloister i.e the Federal Circuit to apprehend apparent cases. This cloister accustomed patentability of software, to be advised analogously throughout the US. Due to a few battleground cases in this court, by the aboriginal 1990s the patentability of software was able-bodied established.

Moreover, Several acknowledged litigations appearance that software patents are now acknowledged in the US. That is the reason, Patenting software has become boundless in the US. As of 2004, about 145,000 patents had issued in the 22 classes of patents accoutrement computer implemented inventions.


Software is anon patentable in Japan. In assorted litigations in Japan, software patents accept been auspiciously enforced. In 2005, for example, Matsushita won a cloister adjustment barring Justsystem from anarchic Matsuhita's Japanese apparent 2,803,236 accoutrement chat processing software.

Indian Position

With account to computer software, in Patents (Amendment) Act, 2002, the ambit of non-patentable accountable amount in the Act was adapted to accommodate the following: "a algebraic adjustment or a business adjustment or a computer programme per se or algorithms".

However, the contempo alteration changes (Ordinance, 2004), which apology the Patents Act, 1970, has been promulgated afterwards accepting acceptance from the President of India and has came into aftereffect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to accompany is to admittance the patenting of anchored software.

Hence, the alteration agency that while a algebraic or a business adjustment or an algorithm cannot be patented, a computer programme which has a abstruse appliance in any industry or which can be congenital in accouterments can be patented. Back any bartering software has some industry appliance and all applications can be construed as abstruse applications, acutely it opens all software patenting.

In any case, any aggregation gluttonous to book a apparent appliance for software beneath the Ordinance should ensure that its apparatus firstly, follows the three basal tests:

o Adroit Steps

o Novelty

o Usefulness

Therefore, it is important that the software approved to be adequate is not alone a new adaptation or an advance over an absolute code.

Further, in accordance with the specific requirements of the Ordinance with attention to patentability of software, the software should necessarily accept a abstruse appliance to the industry or be built-in to or "embedded" in hardware. This is to anticipate adjoin any approaching action or claims of infringements actuality raised, which is a audible anticipation alike afterwards a apparent has been granted.


India for its allotment seems to accept adopted the added bourgeois access of the European patenting norms for software. But the Ordinance absolutely has its use and appliance in today's India, decidedly for our growing calm caliginosity aqueduct industry. This, forth with administrative about-face ability absolutely ensure a accurate use of apparent aegis while acceptance the industry to abound through innovations and inventions, thereby, mitigating the risks of atomic patents chocking the activity out of absolute innovations and inventions. This is the acumen a apparent should consistently be advised as a "double belted sword", to be wielded with attention and sensitivity.

Now whether, in absoluteness this will be implemented on a adamant base or will become ample in ambit through appliance (as in the U.S.), and, added importantly, whether the Ordinance would, in fact, aftereffect in added addition and inventions in the software industry, charcoal to be seen.
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