Computer Software & Business Method Patents In India


India, like the European Union, does not permit patents for inventions related to mathematical or business technique or the computer program “according to me” or algorithms. The applicable provision underneath the Indian Patents Act reads as below:


three. What isn’t inventions.- the following aren’t innovations within the that means of this act,–
(k) a mathematical or business method or PC program according to use or algorithms;
The Section makes it amply clean that algorithms are not patentable in India. Though as per the Indian Patent Act, mathematical method, business method or laptop program in step with me aren’t allowed. The draft patent manual defines how inventions pertaining to above need to be handled by means of the Indian Examiners and lays down parameters under which such inventions will be patentable in India.

The proposed patent manual defines laptop applied invention as any invention the performance of which includes the usage of laptop, PC community or other programmable equipment, or an invention one or more functions which are realized totally or partly with the aid of a laptop program/ programs. Further, patent guide defines Computer programmes as a hard and fast of instructions for controlling a series of operations of a records processing machine which closely resembles a mathematical method. Computer programme may be expressed in numerous forms e.G., a series of verbal statements, a flowchart, an set of rules, or other coded form and maybe offered in a shape appropriate for direct entry into a selected PC, or may additionally require transcription right into a distinct layout (computer language). It may also merely be written on paper or recorded on a few machine readable medium consisting of magnetic tape or disc or optically scanned document, or it maybe completely recorded in a manage keep forming part of a laptop.Business

Though proposed patent guide emphasizes on disclosure of mode of operation for inventions related to equipment and vital series of steps for procedure associated invention, yet it lays down categorically that a hardware implementation performing a novel characteristic isn’t always patentable if that particular hardware gadget is understood or is plain regardless of the characteristic accomplished. It manifests that for such sort of invention insertion of approach steps in apparatus or a few dependency will be required to cause them to non-apparent.

The patent guide has also broadly labeled innovations associated with PC/ PC programs as underneath:

(a) Method/process;
(b) Apparatus/machine; and
(c) Computer software product


Further to make the invention patentable in India, the approach declare must simply outline the stairs involved in sporting out the invention and have to have a technical character. In other words, it has to remedy a technical hassle. The claims must include the information regarding the mode of the implementation of the discovery via. Hardware or software program, for better clarity. The claim orienting toward a “manner/approach” should comprise a hardware or gadget drawback. Technical applicability of the software claimed as a procedure or technique declare, is required to be described in relation to the particular hardware components. Thus, the “software program in line with me” is differentiated from the software program having its technical software in the industry. Therefore, as according to the patent guide, a claim directed to a technical manner which system is accomplished beneath the manipulate of a program (whether or not by hardware or software program), can not be appeared as referring to a computer program as such.

An example is also noted within the proposed patent manual on what type of claims will be allowable.

“a technique for processing seismic facts, comprising the stairs of gathering the time varying seismic detector output signals for a plurality of seismic sensors positioned in a cable.”

“Here the alerts are amassed from a definite recited shape and as a result allowable.”

What is extensive right here is that patent office isn’t always emphasizing on embedment of hardware components inside the approach claims, as the best condition for patentability of approach claims, however, requires it as a device/hardware dilemma. Therefore the critical of approach claims are:

a) It should remedy a technical trouble;
b) It ought to incorporate the details regarding the mode of the implementation of the invention thru. Hardware or software, for better readability; and c
) It needs to include a hardware or system quandary.


As in keeping with the proposed patent guide the apparatus claim need to clearly define the inventive constructional hardware features. This ought to act as a problem, as in the main hardware or gadget do not involve novel or inventive constructional characteristic but are programmed to carry out in a singular or ingenious way. Further, it shows that the claim for an apparatus should incorporate a “procedure trouble” for an apparatus, in which “obstacle” manner defining the unique utility and now not the overall software. As a preferred rule, a novel strategy to a problem referring to the inner operations of a laptop, even though comprising a application or subroutine, will necessarily involve technological functions of the laptop hardware or the manner wherein it operates and for this reason may be patentable.

An example is also stated as to what manner process obstacle shall be inserted in the claim. For instance, in a laptop comprising means for storing sign facts and a first resistor for storing records, the clause beginning with “for” describes the characteristic or process accomplished by means of the equipment, and shape the part of “manner difficulty” right here.

Therefore the crucial of equipment/system claims are:
a) It ought to genuinely define the imaginitive constructional hardware capabilities; and
b) It need to include a “process predicament” for an equipment, wherein “dilemma” method defining the specific utility and not the overall software.


A careful interpretation and analysis of the availability makes it clear that it’s far computer programme in line with se that are not allowed as they may be concern rely of copyright in India. The purpose for now not thinking about the software program as patentable challenge be counted become to avoid duality of protection to be had to software program. But challenge remember of copyright may be most effective their literal presentation of software which incorporates coding deciphering or set of rules form and extra exactly it is their algorithms shape that the Indian Patents Act does now not do not forget the patentable difficulty rely upon.

The proposed patent manual considers the claims referring to software program programme product as nothing however pc programme per se in reality expressed on a pc readable storage medium and as such aren’t allowable. Therefore calls for some thing tangible to convey them out of provisions of Section 3 (K) of the Indian Patents Act i.E. Embedding of hardware components.

For instance, if the new feature incorporates a set of instructions (programme) designed to govern a recognized pc to cause it to perform favored operations, without unique adoption or amendment of its hardware or enterprise, then irrespective of whether or not claimed as “a pc organized to perform and so on” or as “a method of working a laptop”, and so on., isn’t patentable and for this reason excluded from patentability.

It creates an ambiguity as whether or not a patent shall be allowed in which all criteria for approach or process claims as required with the aid of patent workplace are met. The best distinction from the preceding classes can be that in present category “mode of implementation of the invention” isn’t always cited inside the claim, which in any case ought to not trade the very individual of the invention.Software

Patent manual similarly clarifies that the claim might stipulate that the instructions had been encoded in a particular manner on a specific recognised medium however this will no longer affect the issue. E.G., A application to assess the fee of PI or to discover the rectangular root of a number are held not allowable. However, an invention which includes hardware together with software program or computer software that allows you to carry out the function of the hardware can be considered patentable. E.G., embedded systems.

Therefore, claims should have few hardware additives as an critical part of the discovery and a few shape of interdependence should be proven among the software program and hardware additives. Hence, claims regarding methods utilising pc programs for its operation are patentable, as long as they do now not declare pc applications itself.

Therefore the crucial of laptop software product claims are:

a) Must contain hardware additives;
b) Computer programmes must carry out characteristic of the hardware; and
c) There have to be interdependence among the software program and hardware additives


In history of inventions relating to enterprise strategies filed in India, primary motives for negating the invention was lack of commercial software, that is one of the primary circumstance to qualify as an invention and attention whether or not identical in non-patentable being business technique may be taken into consideration only if the problem is first determined to be invention.

Invention is defined beneath Section 2(1)(j) of the Indian Patents Act, 1970 and reads as follow:-

“Invention” means a new product or method related to an imaginative step and capable of industrial software.”

In Melia’s Application (BL O/153/ninety two), where an application relating to a scheme for replacing all or a part of a prison sentence for corporal punishment became held to lack business applicability and also to be a way for doing enterprise.

In John Lahiri Khan’s Application (BL O/356/06) a method for effecting introductions which will making pals turned into held now not to be industrially relevant, despite the fact that it can be carried out via a commercial agency. It become also discovered to be non-patentable as a technique of doing enterprise.

“Capable of commercial utility” is defined under Section 2(1)(ac) of the Indian Patents Act, 1970 and reads as follow:-

“Capable of commercial software”, in terms of an invention, approach that the invention is able to being made or utilized in an industry.

In re: Bernard Bilski, US Federal Court of attraction in its judgement dated October 30, 2008 upheld that commercial enterprise techniques cannot be patented. The court docket found that the only analysis for figuring out whether an invention is patentable should be the “device-or- transformation test” i.E. Requiring involvement of a gadget (like in case of computer program product) or remodeling an editorial (for details seek advice from case regulation).

Though there are no precise, pointers in proposed draft manual as to a way to deal with innovations referring to enterprise techniques, the necessities for patentability as in case of computer programmes or mathematical techniques becomes of fantastic importance and could be relied.

Therefore the commercial enterprise technique in line with se may not be patentable, but its technical implication can be a topic be counted of patentable invention.


A mathematical technique is one that is completed on numbers and gives a result in numerical shape (the mathematical method or set of rules therefore being merely an abstract idea prescribing the way to function at the numbers) and not patentable. However, its software can be patentable if achieved characteristic is technical manner and claim is directed to such technical manner no longer the mathematical technique.

Reference has been made to Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/eighty four) wherein the discovery concerned a mathematical method for manipulating facts representing an image, main to an more desirable virtual photo. Claims to a way of digitally filtering statistics accomplished on a conventional standard reason pc had been rejected, considering the ones claims were held to outline an summary idea no longer distinguished from a mathematical approach. However, claims to a method of image processing which used the mathematical method to perform on numbers representing an photo can be allowed. The reasoning changed into that the image processing done became a technical (i.E. Non- excluded) procedure which associated with technical first-class of the image and that a claim directed to a technical system wherein the method used does not searching for protection for the mathematical technique as such. Therefore the allowable claims as such went beyond a mathematical technique.

Therefore anybody interested in defensive an invention in India or for any a part of the arena has to more careful at the time of submitting simple utility (priority software). The specification as well as claims have to be modified in pretext of above earlier than submitting of patent software otherwise the outline have to have sufficient guide for modification of the claims to consist of hardware components. One of the most secure criteria deployed through the Examiner to find whether or not any hardware features are concerned in the invention is to require inclusion of reference numerals for hardware components within the description in addition to claims.