Software and Indian Patent Law, a good combination?
Intellectual property is known to be a fundamental pillar for the innovation of technology. Indeed, by granting protection to inventions, this law enhances investments in research and contributes to the increase of innovation. Nowadays, it must be noticed that innovation is not only in the traditional sectors as automobile industry or chemical industry, but is also in IT industry. Smartphones, tablets, connected watches and so on, that have emerged these last decades, are all new technologies based on software developments.
Despite the absence of a precise definition, the word – software – can be considered as a word describing all of the different types of computer programmes. Computer programme, according to the Copyright Act, is “a set of instructions in expressed words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result”. In practical terms: The intelligent personal assistant of Apple – Siri –, the word processor – Microsoft Word –, the famous – Super Mario Bros – video game are deemed to be computer programmes.
Computer programme initially protected by Copyright Law
After an international debate on whether Patent Law or Copyright Law or whether a sui generis law must protect software, the Berne Convention for protection of literary and artistic work (1886) has endorsed the principle that computer program should be regarded as a literary work and consequently be protected by Copyright Law. This protection must be granted as soon as the software fulfils the requirements for Copyright protection. India has followed this vision as Section 2 (o) of the Indian Copyright Act states “literary work includes computer programmes” and Section 13 (1) outlines that Copyright shall subsist throughout India in original literary work. Thus, it’s a well-known principle that Copyright protects the original form of expression of an idea, and not the idea itself. In terms of a computer programme, the source code (Translation of an object code, source code contains variable declaration, instructions, functions, and other statement that tell the programme how to function) represents the form of expression of the idea. Indeed, Copyright law will protect computer programme only if the source code is written on paper. Otherwise, Copyright protection will not be granted. In this case, is it possible to rely on Patent protection?
Computer programme not patentable in theory
The Indian Patent Office grants Patent protection only after a thorough examination of a patent application. In fact, Section 2 (j) of Indian Patent Act states that an invention is patentable if it’s a product or process, which is new, involving an inventive step and capable of industrial application. Moreover, Section 3 (k) of the Indian Patent Act states that “computer programme per se” is not an invention. In other words, the software in itself cannot be patented. This exclusion is understandable, as all parts of software don’t fulfil the requirements for an invention. For instance, the content of the software cannot be qualified as a technical element. Similarly the state of art could hardly be determined regarding computer programmes and this difficulty counteracts the verification of the new invention condition. Nevertheless, presence of the term “per se” leaves place for different interpretations and it enabled to patent computer programme in the form of “computer related invention”. In other words, if the computer programme is a part of an invention, which fulfil all the requirements of the Indian Patent Act Section 2 (j), then the protection granted to the invention will be also granted to the computer programme. If it’s a well-accepted solution now, it must be noticed that it appeared only after the vacillation of the Office of the Controller General of Patent, Designs and Trademarks.
The vacillation of the Indian Office of Patent
On February 19, 2016, the Office of the Controller General of Patents, Designs and Trademarks has released guidelines for the examination of Computer Related Inventions (CRIs) after several debates on its previous liberal guidelines (August 21, 2015). Initially, guidelines for the examination of CRIs are deemed to help the Patent officer when he has to examine a computer related invention. But the 2015 guidelines seem to have created more confusion than anything else. Indeed, by the culmination of many factors as the way the regulations were drafted, the addition of new criteria to determine if a computer programme is patentable or not and so on, regulations opened up in the end, to the possibility to patent software “per se” which is prohibited by the law. This confusion shows the difficulty to delineate what is patentable and what is not patentable in terms of computer programme. Now, the revised guidelines of 2016 are in line with the Indian Patent Act, 1970. Regulations causing confusion have been removed and strict requirements to patent software have been prescribed by the new regulations (e.g. Guidelines have outlined that software per se cannot be patented under any circumstances).
Discussion on the patentability of computer programme
Given that considerable developments take place in the information technology space, should Indian law allow the patentability of software or should it keep the current law? Well, the issue has been a part of a worldwide discussion that has lasted many years with equal arguments for both sides. What are the pleas? For those who want it brought under the purview of patent law, the belief is that, Patent law grants a strength and wider area of protection when compared to Copyright law. Another point of their plea is that development of a computer programme requires lot of things (e.g. investment in research and development, time, skilled human resources) and if the investors and the inventors don’t get an effective protection for the invention, they will note be encouraged to contribute to innovation. An additional point of concern is the rate at which technology in a computer field becomes obsolete in no time and emphasize the need of protection by Patent law. For those who want to keep the current law, the main point is that by granting patent protection to computer programme, the multinational corporations will be promoted at the expense of smaller software developers as multinationals have the funds to obtain expensive patents and manage patent litigation contrary to the smaller entities. Likewise, supporters of the non-patentability of computer programme spotlight the risk of choking innovation in IT industry in the case where software is patented, as it will allow monopoly by each right holder. Equally they assure that Copyright law is sufficient for protection of computer programme and investors will not be dissuaded to invest for innovation. I guess this is a debate which will continue for a while.
In my personal opinion, software and Indian Patent Law does not seem to be a good combination given the cons points mentioned above. Moreover I think that the legal proceedings to obtain a patent in India is sufficiently long (7 or 8 years!) and does not need to be lengthen by the addition of patent application for software!
This article has been authored by Divya Shanmugathas who is pursuing law at, Université Paris 1 Panthéon-Sorbonne. The views and opinions expressed in this article are those of the author.