An Overview of Software Patenting



The concept of “intellectual property” in India has taken on a few epic proportions for some of its motives over the previous few years. Due to the developing awareness among the city Indian population, one of the primary motives is the importance and, more importantly, the industrial benefits in protecting its intellectual belongings rights each inside and outside India. And under traditional intellectual property protection standards, patent law is to inspire clinical research, new technology, and business development. The fundamental precept of patent law is that the patent is granted best for an invention i.E. New and beneficial, the stated intention has to have novelty and utility. The provisions of the patent, as a consequence, turn into industrial assets and are additionally referred to as a highbrow asset. And the computer software is an enormously new recipient of patent safety.


The time period “Patent” has its origin from the term “Letter Patent”. This expression ‘Letter Patent’ intended open letter and had been units underneath the Great Seal of King of England addressed utilizing the Crown to all of the big topics. The Crown conferred certain rights and privileges on one or extra people inside the state. It changed into inside the later part of the nineteenth-century innovations inside the area of art, manner, method or manner of manufacture, equipment and other materials produced with the aid of producers were on accelerated and the inventors have become very a whole lot fascinated that the innovations executed by way of them have to be now not infringed utilizing someone else via copying them or by way of adopting the techniques used by them. To store inventors’ hobbies, the then British rulers enacted the Indian Patents and Design Act, 1911.

With admire to the patentability of software -associated inventions, it’s far currently one of the most heated discussion regions. The software has emerged as patentable in current years in maximum jurisdictions (although with restrictions in certain countries, considerably those signatories of the European Patent Convention or EPC). The number of software program patents has risen unexpectedly.


The term “software program” does not have a precise definition, or even the software program industries fail to present a particular definition. But it is basically used to explain all the unique styles of pc programs. Computer packages are basically divided into “software packages” and “running device applications.” Application applications are designed to do precise tasks to be achieved via the computer. The working machine programs are used to manipulate the laptop’s internal features to facilitate the application program. Though the time period ‘Software patent’ does not have a universally regular definition. One definition advised by the Foundation for a Free Information Infrastructure is that a software program patent is a “patent on any performance of a computer realized by a PC program.”

According to Richard Stallman, the co-developer of the GNU-Linux running gadget and proponent of Free Software says, “Software patents are patents which cover software program thoughts, ideas which you could use in growing software. Software patents check with patents that might be granted on products or techniques (consisting of strategies) that encompass or might also include software as a large or at the least vital part of their implementation, i.E. The form wherein they’re installed practice (or used) to provide the impact they intend to provide.

An early instance of a software patent:

On twenty-first Sep 1962, a British patent software entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The invention became worried with efficient reminiscence control for the simplex algorithm and can be implemented via purely software manner. On August 17, 1966, the patent turned into granted and appears to be one of the first software program patents.


The software has historically been included underneath copyright regulation because code suits quite easily into the outline of literary paintings. Thus, Software is blanketed as literature works underneath the Berne Convention, and any software program written is routinely blanketed through copyright. This permits the creator to prevent another entity from copying this system, and there is typically no need to sign in code to be copyrighted. While Software Patenting has recently emerged (if handiest inside the US, Japan, and Europe), Patents supply their owners the right to save others from using a claimed invention. However, it was independently evolved, and there was no copying concerned.

Further, it has to be referred to that patents cowl the underlying methodologies embodied in a given piece of software program. On the other copyright prevents the direct copying of software programs; however, it does not save you, other authors, from writing their very own embodiments of the underlying methodologies. However, the problems worried about conferring patent rights to software programs are much greater than putting off copyrights on them. Specifically, there are two demanding situations that one encounters whilst managing software program patents. The first is the instrument of the patent itself and whether the manner of safety it confers is appropriate to the software enterprise. The 2d is the character of software and whether or not it must be a concern to patenting.

However, troubles concerned with conferring patent rights to software programs are a lot more complex than eliminating copyrights. Specifically, there are challenges that one encounters while dealing with software program patents. The first is to ready the patent’s device itself and whether the way of protection it confers is proper to the software industry. The 2nd is the nature of the software program and whether it should be a situation to patenting.

A) Different Subject Matters

Copyright protection extends to all unique literary works (laptop applications), dramatic, musical, and creative works, including movies. Under copyright, safety is given handiest to the unique expression of an adopted concept and not the idea itself. (For example, a program to add numbers written in two unique PC languages could matter as two exclusive expressions of 1 idea) Effectively, impartial rendering of a copyrighted work via a third birthday party could no longer infringe the copyright. Generally, patents are conferred on any ‘new’ and ‘beneficial’ artwork, system, technique, or manner of manufacture, machines, appliances, or different articles or substances produced by the manufacturer. Worldwide, the mindset toward patentability of software has been skeptical.

B) Who may additionally claim the proper to a patent /copyright?

Generally, the writer of literary, artistic, musical, or dramatic paintings robotically turns into its copyright owner. On the other hand, the patent is granted to the first to use it, irrespective of who the primary to invent it changed into. Patents value a variety of money. They cost even greater paying the attorneys to write the utility than they price to follow genuinely. It normally takes some years for the application to consider, even though patent places of work do a very sloppy job.

C) Rights conferred

Copyright law gives the owner the different right to reproduce the material, difficulty copying, performing, adapting, and translating the work. However, these rights are tempered using the rights of truthful use, which can be available to the public. Under “honest use,” certain uses of copyright cloth might not be infringing, including use for academic functions, information reporting, etc. Further, the unbiased endeavor of copyrighted paintings might now not constitute infringement. Thus if the same piece of code has been independently advanced by way of different businesses, neither would have declared opposition to the opposite. A patent confers an absolute monopoly on the owner that’s proper to save you others from making, using, and imparting for sale without his/her consent. In general, patent protection is a miles stronger method of safety than copyright because the safety extends to the extent of the idea embodied by using a software program and injuncts ancillary uses of an invention as nicely. It might weaken copyright in software based on all European software program development because independent creations included by copyright would be attackable through patents. Many patent applications cover minimal and specific algorithms or strategies utilized in a huge package style. Frequently the “innovations” stated in a patent application have been independently formulated and already used through different programmers while the utility is filed.

D) Duration of safety

The TRIPS settlement mandates a minimum of two decades for a product patent and 15 years within the case of a manner patent. For Copyright, the settlement prescribes a minimal duration of the life of the writer plus seventy years.


Substantive regulation concerning the patentability of software and computer-implemented inventions and case regulation interpreting the legal provisions are distinctive below one of a kind jurisdictions. Software patents underneath multilateral treaties:

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), especially Article 27, is a concern to discuss the global legal framework for software patentability and on whether software and laptop-implemented innovations should be taken into consideration as an area of generation.

According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or procedures, in all fields of technology, furnished they may be new, involve an inventive step, and can commercial application. (…) patents will be to be had and patent rights exciting without discrimination as to the area of invention, the sector of generation and whether the merchandise is imported or regionally produced.”

However, there had been no dispute agreement techniques regarding software program patents. Its relevance for patentability inside the computer-implemented enterprise methods and software records generation remains unsure because TRIPs agreement is a situation to interpretation.Overview

Software patents beneath the European Patent Convention

Within European Union member states, the EPO and different countrywide patent workplaces have issued many patents for innovations regarding software because the European Patent Convention (EPC) came into force inside the late 1970s. Article fifty-two EPC excludes “applications for computers” from patentability (Art. Fifty-two (2)) to the volume that a patent application pertains to a laptop program “as such” (Art. 52(3)). This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical hassle” in a non-obvious manner is patentable even if computer software is used in the invention.

Computer-applied innovations that simplest solve commercial enterprise trouble using a computer, in preference to technical trouble, are considered unpatentable as missing an imaginative step. Nevertheless, the truth that an invention is useful in business does not suggest it is not patentable if it also solves a technical hassle.

Computer applications and the Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is a worldwide patent law treaty, which offers a unified procedure for submitting patent applications to defend innovations. A patent application filed underneath the PCT is referred to as international software or PCT software. Under the PCT, the global seek and the preliminary exam is conducted via International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).


However, earlier than we begin hailing the appearance of new technology and equating the patenting of software in India, it’d be nicely really worth our whilst to take a pause and take a look at the realities of software program patenting. We may want to try this by looking at examples of nations in which software patenting has already ended up in the order of the day and inside the US and Japan.

United States

The United States Patent and Trademark Office (USPTO) has traditionally now not taken into consideration software programs to be patentable due to the fact through statute; patents can most effectively be granted to “tactics, machines, articles of manufacture, and compositions of relying on.” I.E., In unique, patents can not be granted to “clinical truths” or “mathematical expressions” of them. The USPTO maintained the placement that software become in effect a mathematical set of rules, and therefore not patentable, into the Eighties. This role of the USPTO became challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used laptop software to make certain an appropriate timing when heating, or curing, rubber. Although the software program was the fundamental part of the device, it also had different capabilities related to actual global manipulation. The court docket then ruled that as a tool to mold rubber, it become a patentable item. The court essentially ruled that while algorithms themselves couldn’t be patented, devices that applied them may want to.

But in 1982, the U.S. Congress created a new court docket i.E the Federal Circuit, to hear patent instances. This court docket allowed patentability of software programs to be handled uniformly during the United States. Due to 3 landmark cases in this court, using the early Nineties, the patentability of software program turned into properly hooked up. Moreover, Several hit litigations show that software program patents at the moment are enforceable in the US. That is the cause, Patenting software program has turned out to be full-size within the US. As of 2004, approximately a hundred forty-five 000 patents were issued inside the 22 patents masking laptop applied inventions.


The software is at once patentable in Japan. In diverse litigations in Japan, software patents had been successfully enforced. In 2005, for instance, Matsushita received a court order barring Justsystem from infringing Matsushita’s Japanese Patent 2,803,236 overlaying phrase processing software.

Indian Position

With appreciate to laptop software programs, in the Patents (Amendment) Act, 2002, the scope of non-patentable concern relies on the Act was amended to encompass the following: “a mathematical method or an enterprise technique or a computer program in keeping with use or algorithms.”

However, the latest modification adjustments (Ordinance, 2004), which amends the Patents Act, 1970, have been promulgated after receiving assent from the President of India and has got here into effect from 1st Jan. 2005. Apart from the exchange in prescribed drugs and agrochemical compounds, one of the seminal amendments this Ordinance seeks to convey is to permit the patenting of embedded software programs. Hence, the change means that while a mathematical or a commercial enterprise technique or a set of rules can’t be patented, a laptop program that has a technical application in any industry or which may be included in hardware can be patented. Since any commercial software has a few enterprise applications and all packages may be construed as technical applications. Obviously, it opens all software patents. In any case, any organization seeking to record a patent utility for a software program underneath the Ordinance need to ensure that its invention firstly follows the three fundamental checks:

  • o Inventive Steps
  • o Novelty
  • o Usefulness

Therefore, it’s miles important that the software should be blanketed isn’t merely a new version or a development over a present code. Further, according to the specific requirements of the Ordinance in regards to patentability of software, the software needs always to have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to save you against any destiny litigation or claims of infringements raised, which is a wonderful chance even after a patent has been granted.


For its component, India seems to have followed the more conservative approach of the European patenting norms for a software program. But the Ordinance truly has its use and relevance in today’s India, particularly for our growing home semi-conductor industry. This, alongside judicial tempering, would possibly surely make certain a really apt use of patent protection while permitting the enterprise to grow through innovations and inventions, thereby mitigating the risks of trivial patents chocking the lifestyles out of actual improvements and inventions. This is why a patent has to continually be handled as a “double-edged sword,” to be wielded with caution and sensitivity. Now whether or not, in fact, this can be carried out on an inflexible foundation or will become large in scope through utility (as in the U.S.), and, more importantly, whether the Ordinance could, in fact, result in improved innovation and inventions within the software enterprise, remains to be seen.

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Harlan J. Whelan
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