Can You Patent Software in India?

Patenting software has long been a topic of debate, intrigue, and, for some, confusion. If you’re wondering, “Can you patent software?” you’re not alone.

For entrepreneurs, software developers, and even big tech companies, this question holds a lot of weight. After all, in a world driven by technology, the lines between intellectual property and innovation can sometimes blur.

This article breaks down the complexities of software patents, explains how to navigate the legal waters, and explores the pros and cons of protecting your software through patents. We’ll dive deep into what qualifies for a patent, how to go about getting one, and why some countries treat software patents differently.

What is a Software Patent?

A software patent is a form of intellectual property protection that grants the patent holder exclusive rights to a particular software invention. In essence, the patent protects the process or method that the software uses to achieve a specific result. It doesn’t protect the actual lines of code, but rather the system or technique that underlies the functionality of the software.

For example, if you invent a new way for software to process images more quickly, you could potentially patent that method, assuming it meets certain criteria. A patent would give you the exclusive right to use, sell, and license that method for a set period, usually 20 years.

The Basics: What Can Be Patented?

The first question you need to ask is: Does my software qualify for a patent? This boils down to three basic criteria for any invention:

1. Novelty – Your software must be new and not previously disclosed.
2. Non-Obviousness – It can’t be something that would be obvious to someone skilled in the field.
3. Utility – The software must be useful and serve a functional purpose.

However, software faces an additional hurdle. Many countries, including the United States and European Union, don’t allow patents on abstract ideas, which can make patenting software tricky.

To qualify for a patent, your software must be tied to a machine or provide a specific, tangible result. Otherwise, it might be considered an abstract idea, which isn’t patentable.

Can You Patent Software in India?

Software and computer programs are not inherently eligible for patent protection. However, under specific circumstances, software or computer programs may qualify for patents.

To secure a patent for software development, the following key criteria must be satisfied:

• Patentable Subject Matter: The invention must fall within the categories eligible for patents.
• Industrial Applicability: The invention must be capable of being used in some form of industry.
• Novelty: The invention must be new, meaning it has not been disclosed in any publication or used publicly anywhere in the world before the patent application is filed with a complete specification.
• Inventive Step (Non-Obviousness): The invention must involve an inventive step that is not obvious to someone with expertise in the relevant field.
• Adequate Disclosure: The patent application must thoroughly disclose the invention, meeting both formal and substantive legal standards.

According to Section 2(1)(i) of the Patents Act, 1970, a “new invention” refers to any invention or technology that has not been anticipated by prior publications or public use anywhere in the world before the filing date of the patent application. This ensures that the subject matter is not part of the public domain or existing state of the art.

However, Section 3(k) of the Patents Act, 1970 explicitly excludes “a mathematical or business process, a computer program per se, or algorithms” from being considered as innovations eligible for patents.

The term “per se” was clarified in the Joint Committee Report accompanying the Patents (Amendment) Act, 2002, which stated, “This change has been proposed because sometimes the computer program may include certain other things, ancillary thereto or developed thereon.”

This clarification indicates that while computer programs themselves are not patentable, those that incorporate additional elements or enhancements may qualify for patent protection.

Despite the legislative intent to exclude computer programs per se, Section 3(k) also implies that not all software is ineligible for patent protection.

Genuine software innovations that meet all the patentability criteria should be granted patents. Therefore, a rigorous examination of software patent applications is essential to ensure that only truly inventive and technically significant software receives patent protection. This stringent scrutiny is necessary because patent protection safeguards the underlying ideas of the patent, which can potentially restrict further innovation based on the patented concept.

Consequently, software that demonstrates a “technical effect” or provides a technical solution to a problem can be protected under the patent system.

Software Patents Around the World: Why So Confusing?

Copyright law does not safeguard the processes, procedures, or inventions underlying software. Instead, computer software, algorithms, and code are treated distinctly, with patent law categorising them as a form of applied mathematics.

Typically, software patents are restricted to those that incorporate innovative ideas and programming techniques aimed at enhancing a computer’s performance.

The United States

In the United States, the sphere of software patents has evolved significantly in recent years. In the landmark case Alice Corp Pty. v. CLS Bank International, the Supreme Court ruled that inventions pertaining to abstract ideas, rather than improvements in computer functionality, are not eligible for patent protection.

U.S. courts evaluate software patents based on several criteria, including technical advantage, novelty, non-obviousness, and utility. To qualify for a patent, an invention must demonstrate a tangible improvement in computer operations.

European Union

Under the European Patent Convention (EPC), specifically Articles 52(c) and 3, computer programs “as such” are excluded from patentability. However, in the case of In Re, International Business Machines Corporation, the Board of Appeals for the European Patent Office (EPO) clarified that computer programs should not be categorically excluded from patent protection under Article 27 of the TRIPS Agreement.

The EPO concluded that only standalone computer programs without a technical character are non-patentable. Therefore, software that demonstrates a technical solution to a technical problem is eligible for patent protection, regardless of the medium in which it is recorded.

Japan

Japan adopts a more permissive stance on software patents. According to the Japanese Patent Act, software is unequivocally patentable provided it constitutes a “creation of technical ideas utilising the law of nature.”

The Japan Patent Office guidelines stipulate that a computer program can receive patent protection if it operates in harmony with hardware, thereby demonstrating a technical effect. This requirement ensures that the software contributes to the functionality and performance of the hardware it interacts with.

Why Should You Patent Your Software?

You might be wondering, Why go through the headache of patenting software? Well, there are several good reasons, particularly if you’ve got something innovative on your hands.

• Exclusivity: By patenting your software programs, you obtain exclusive rights to it. No one can use, sell, or license your patented technology without your permission. This is powerful, especially if your piece of software fills a gap in the market or represents a new leap in innovation.
• Financial Value: Software patents can significantly increase the value of your company. Investors often look for patented technology as a sign of innovation and long-term potential. Patents can also become an additional revenue stream if you choose to license your technology to others.
• Competitive Advantage: Patents give you a legal advantage over competitors. If someone tries to copy your method or technique, you can take legal action. This reduces the risk of competitors profiting from your hard work.
• Partnerships and Licensing: Many tech companies, especially startups, build partnerships or create licensing deals based on their patents. A patent can open doors to partnerships with bigger players in the tech industry, offering you the chance to expand your reach and scale faster.

How to Patent Your Software?

While it’s possible to file for a patent on your own, it’s highly recommended to hire a patent attorney with experience in software patents. This is a specialised area of law, and a mistake in your application can set you back years. Plus, a lawyer can help you ensure that your patent application meets all the legal requirements.

To begin the patent application process for software in India, you first need to document your idea in detail. This documentation should include the underlying concepts, a comprehensive description of how the software functions, the area of invention, relevant code snippets, the software’s advantages, and its intended use.

It is essential to thoroughly explain how your invention operates. Including diagrams, objects, and sketches can enhance the clarity of your explanation.

Before proceeding, check if your innovation has already been patented. If it has, assess whether it meets the criteria for patentability.

After conducting diligent research, decide whether to move forward with the patent application. Next, draft the patent application, ensuring that all requirements and specifications are met. Once complete, the application should be published.

Following publication, you will need to submit a Request for Examination. The examiner will then review your application. If any objections arise regarding the invention, it’s essential to respond to these objections promptly and effectively.

Once all requirements are fulfilled and the patent process is completed, you can check the patent journal to verify if your patent has been granted.

It’s important to comprehend that, despite appearing straightforward, the software patenting process can be quite complex.

Many innovations, particularly in the technological sector involving applications and software, may not qualify for patent protection in India. This complexity can be discouraging for many coders and developers in the country who generate remarkable innovations.

Alternatives to Patenting Software

Not every software developer or entrepreneur chooses to patent their software, and that’s perfectly fine. There are other ways to protect your software and intellectual property:

Copyright: While patents protect the method or process, copyright protects the source code. Copyrighting your software ensures that no one can directly copy or redistribute your code without permission. It’s simpler and less expensive than filing for a patent, though it doesn’t offer the same level of protection for the underlying method.

Trade Secrets: Some companies, particularly in the software industry, opt to protect their innovations as trade secrets. By keeping your algorithms, code, or processes secret, you avoid the hassle of patents. However, the challenge here is ensuring that your secret remains secret.

Open Source: For some developers, the goal isn’t to keep their software under lock and key but rather to share it with the world. Open-source software is a popular alternative, where developers make their code available to the public. 

Licensing Agreements: Licensing agreements allow you to grant others permission to use your software under specific terms and conditions. This method enables you to retain ownership of your software application while generating revenue through licensing fees. You can define how the piece of software is used, distributed, and modified.

Recent Examples of Software Patents in India

Accenture Global Service GMBH v. Assistant Controller of Patents & Designs and the Examiner of Patents

In this case, Accenture sought a patent for a method designed to generate a data mapping document.

The invention was described as a “technical solution to a technical problem related to the need for a data document design system and design tools that address one of the most significant technical challenges faced by database systems, namely data migration.”

The primary objection raised was that the technical effect of data mapping was not recognised. Despite this, the Indian Patent Office granted the patent, determining that the invention did not qualify as a standalone computer program.

Google

Google filed a patent application in February 2005 for their invention titled “Phrase Identification in an Information Retrieval System.” One of the initial claims was challenged on the grounds that it involved a basic mathematical algorithm consisting of logical steps.

Google defended their application by asserting that the invention offered “a technical solution to a technical problem of automatically identifying phrases within a document collection.” They emphasised that the invention was not merely a computer program but included a technical solution in the form of an index stored in memory, which encompassed associated valid phrases, thereby demonstrating inventiveness.

Acknowledging that the invention represented “a technical advancement over the prior art,” the patent was ultimately granted in 2017.

Apple

In 2009, Apple applied for a patent titled “Method for Browsing Data Items with Respect to a Display Screen Associated with a Computing Device and an Electronic Device.” The application faced objections on the basis that it was a software per se.

Apple countered this by arguing that, although the method’s steps could be executed via software, the method itself constituted a practical application of the computer software designed to produce a useful result. This resulted in an improved technical effect, offering advantages and overcoming the limitations of previously known techniques.

Due to the claim demonstrating an enhanced technical outcome, the Kolkata Patent Office approved the patent.

What’s Next?

In the field of intellectual property law, patenting software remains a nuanced endeavor. While software programs and computing technologies can qualify as intellectual property assets, they must embody an inventive concept and include eligible steps to meet the criteria for patent claims.

Patent software algorithms must demonstrate a technical advancement or solve a specific technical problem to be considered patentable. Unlike copyright protection, which safeguards the actual code of a software product, patents protect the underlying methods and processes, providing robust legal protection against infringement.

Securing intellectual property rights for software is essential for developers and businesses aiming to maintain a competitive edge. By effectively patenting innovative software algorithms and programs, companies can safeguard their unique solutions and foster continued innovation. 

As innovations play a vital role in staying competitive, protecting them is crucial.

As innovations play a vital role in staying competitive, protecting them is crucial. Bytescare offers digital protection services to ensure your intellectual property, including patents, remains safe from infringement.

Whether you’re developing new processes or improving existing technologies, having the right protection in place is essential for success in today’s digital sphere. Book a demo today and experience our solutions firsthand!

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