An Overview of Software Patenting


The concept of “intellectual property” in India during the last two years has brought on a number of epic proportions for a range of factors. An example of the main reasons, attributable to the increasing awareness of all the urban Indian population, is of the significance and also, more importantly, the commercial advantages in protecting its intellectual property rights both within and outside India. And under traditional guidelines of intellectual property protection, patent law is almost always to encourage scientific research, industrial progress and new technology. The important concept of patent law is that the patent is given mainly for an invention i.e. new and comfortable the said product should have novelty and utility. The grant of patent consequently gets of industrial property and also known as an intellectual property. And also the computer program is a fairly new recipient of patent protection.

The word “Patent’ has its origins out of the term “Letter Patent’. This expression’ Letter Patent’ meant open letter and were devices under the Great Seal of King of England resolved by the Crown to each of the subjects in particular in which the Crown conferred particular rights and privileges on a single or more men and women in the kingdom. It had been in the later part of the 19th century new inventions within the field of art, process, manner or method of manufacture, machinery and other substances released by companies were on improved and the inventors became a lot interested that the inventions carried out by them should not be infringed by any one else by copying them or even by adopting the methods used by them. In order to save the pursuits of inventors, the subsequently British rulers enacted the Indian Design and Patents Act, 1911.

With respect to patentability of software related inventions, it’s currently one of the most heated areas of debate. Software is now patentable in the recent past in most jurisdictions (although with restrictions in specific countries, notably those signatories of the European Patent Convention or perhaps The number as well as epc) of software patents has risen fast.


The term “software” doesn’t have a precise definition and also the software industries fails to give an specific definition. But it is basically used for describing every last bit of different types of computer programs. Computer programs are generally divided into “operating system and “application programs” programs”. Application programs are supposed to do certain tasks to be carried out through the pc together with the operating system plans are used to handle the internal functions of the laptop or computer to facilitate use of application program.

Though the term’ Software patent’ does not have a universally accepted definition. One definition proposed by the Foundation for an absolutely free Information Infrastructure is the fact that a software program patent is a “patent on any overall performance of a computer realized by means of a laptop program”.

According to Richard Stallman, the co developer of the GNU-Linux operating system plus proponent of Software that is free states, “Software patents are patents which often make up a software application ideas, ideas that you will utilize in building software.

That’s Software patents refer to patents that could be granted on products or processes (including methods) including or perhaps may include software as a significant or perhaps at minimum necessary part of their implementation, i.e. the form in which they are put in practice (or used) to produce the effect they intend to provide.

Early instance of an application patent:

On 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The product was concerned with effective memory management for the simplex algorithm, as well as could be implemented by purely software means. The patent was given on August 17, 1966 and appears to be on the list of first software patents.


Software has usually been protected under copyright law since code fits without difficulty to the explanation of a literary work. Hence, Software is protected as works of literature under the Berne Convention, thus any software written is automatically covered by copyright. This permits the creator to prevent one other entity from replicating the course and there’s typically no need to register code for it to become copyrighted. While Software Patenting has recently emerged (in case only in the US, Europe and Japan) where, Patents give their owners the best to prevent others from utilizing a claimed invention, regardless of whether it was independently developed and there was simply no copying for you.

Further, it must be noted that patents deal with the underlying methodologies embodied in a certain piece of an application. Although don’t prevent other authors from writing their own embodiments of the main methodologies, on the other copyright prevents the direct copying of software.
The problems involved in conferring patent rights to application are, nonetheless, a lot more advanced than taking out copyrights on them. Precisely, you’ll find 2 obstacles that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of safeguard it confers is best for the software industry. The 2nd is the character of software program, and whether it should be governed by patenting.

Nonetheless, problems involved in conferring patent rights to software are a great deal more advanced than taking out copyrights on them. Precisely, there are 2 issues that one encounters when dealing with software patents. The first is all about the instrument of patent itself and whether the way of shield it confers is best for the software industry. The 2nd is the character of software program and whether it ought to be subject to patenting.

a) Different Subject Matters

Copyright protection includes all initial literary works (among them, computer programs), spectacular, artistic and musical works, including films. Under copyright, security is given simply to the particular expression of an idea that was adopted rather than the concept itself. (For example, a program to include numbers written in two different computer languages would be counted as two different expressions of one concept) Effectively, impartial rendering of a copyrighted function by a 3rd party would not infringe the copyright.

Generally patents are conferred on any’ new’ and’ useful’ art, process, manner or method of manufacture, devices, appliances or any other substances or articles produced by manufacture. Globally, the frame of mind towards patentability of software has been hesitant.

b) Who would lay claim to the right to some patent /copyright?

Generally, the writer of a literary, artistic, dramatic or musical work instantly gets to be the owner of its copyright.

The patent, on the other hand is awarded to the first to use for it, regardless of who the very first to invent it was. A lot of cash was cost by patents. They cost a lot more paying the lawyers to produce the application program than they set you back to really use. It takes normally several years due to the application to get viewed, though patent offices do an extremely sloppy task of considering.

c) Rights conferred

Copyright law provides the owner the exclusive right to recreate the material, perform, issue copies, adjust and translate the work. Nevertheless, these rights are tempered by the rights of fair use which are out there to the public. Under “fair use”, some uses of copyright material would not be infringing, such as use for academic purposes, information reporting etc. Further, self reliant recreation of a copyrighted work wouldn’t constitute infringement. Thus if similar piece of code were independently designed by 2 different companies, neither would’ve a claim against the other person.
A patent confers on the owner an absolute monopoly which is the best to prevent others from carrying out, using, offering for sale without his/her consent. In general, patent protection is a significantly more powerful approach of safety than copyright because the security includes the grade of the thought embodied by a software program and injuncts ancillary applications of an invention at the same time. It will weaken copyright in an application that is the base of just about all European software development, because impartial creations protected by copyright would be attackable by patents. Lots of patent applications cover very small and specific techniques or algorithms which are utilized in a wide variety of programs. Frequently the “inventions” brought up in a patent application were independently formulated and happen to be in use by other programmers when the application is filed.

d) Duration of protection

A period with a minimum of twenty years for a product patent and 15 years in the case of a process patent is mandated by the trips agreement.

For Copyright, the understanding prescribes a minimum period of the lifetime of the author plus 70 years.


Substantive law regarding the patentability of software program and computer implemented inventions, and case law interpreting the legal provisions, will vary under various jurisdictions.

Software patents under multilateral treaties:

o Software patents under TRIPs Agreement

o Software patents under the European Patent Convention

o Computer programs and the Patent Cooperation Treaty

Software patenting under TRIPs Agreement

The WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), especially Article twenty seven, are subject to debate on the international legal framework for the patentability of software program, as well as on whether software and computer implemented inventions should be considered as a field of technology.

Based on Art. twenty seven of TRIPS Agreement, patents shall be for sale for any inventions, whether products or processes, in all fields of technology, provided they’re brand new, involve an inventive step and are capable of manufacturing application. (…) patents shall be accessible and patent rights enjoyable without discrimination as to the location of product, the subject of engineering and whether items are imported or perhaps locally produced.”

However, there are already zero dispute settlement procedures with regards to software patents. Its relevance for patentability in the computer-implemented business techniques, and software info technology remains unstable, since the TRIPs agreement is subject to interpretation.

Software patents under the European Patent Convention

Within European Union member states, the EPO along with other national patent offices have issued a lot of patents for inventions involving software program since the European Patent Convention (EPC) came into power in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the level that a patent application relates to a laptop program “as such” (Art. 52(3)). This has been construed to mean that every product which makes a non-obvious “technical contribution” or resolves a “technical problem” in a non obvious way is patentable even if a computer program is used in the invention.

Computer-implemented inventions that just solve a business issue using a computer, as opposed to a complex problem, are thought unpatentable as absent an inventive step. Nevertheless, the point that an invention is helpful in business does not mean it’s not patentable if in addition, it solves a complex situation.

The Patent and computer programs Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international patent law treaty, which in turn offers a unified course of action for filing patent applications to shield inventions. A patent application sent in under the PCT is recognized as an international application or perhaps PCT application. Under the PCT, the global search along with the preliminary examination are done by International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).


Nonetheless, before we begin hailing the arrival of a new era and equating the patenting of software in India it will be worth our while to take a pause and take a look at the realities of a program patenting. We will do this by checking out examples of places in which software patenting has grown into the purchase of the day, such as in the US and Japan.

United States

The United States Trademark and Patent Office (USPTO) has usually not considered applications to be patentable because by statute patents can merely be given to “processes, magnetic energy generators, articles of manufacture, as well as compositions of matter”. i.e. For example, patents can’t be granted to “mathematical expressions” or “scientific truths” of them. The USPTO maintained the placement that software was in effect a mathematical algorithm, and therefore not patentable, into the 1980s. This role of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. A device that used computer software to ensure the correct timing when heating, or curing, rubber were involved by the case. Although the software was the fundamental component of the device, additionally, it had additional functions that associated with real life manipulation. The court then ruled that as a device to mildew and mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that applied them could.

But in 1982 the U.S. Congress developed an interesting court i.e the Federal Circuit to hear patent cases. This court allowed patentability of a program, being taken care of uniformly throughout the US. As a result of a handful of landmark cases in this court, by the first 1990s the patentability of software was more developed.

Additionally, Several profitable litigations demonstrate that software patents are now enforceable in the US. That is the reason, Patenting software has become extensive in the US. As of 2004, around 145,000 patents had issued in the twenty two classes of patents covering pc implemented inventions.


Software is directly patentable in Japan. In many litigations in Japan, software program patents have been effectively enforced. In 2005, for example, Matsushita received a court order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 overlaying word processing software.

Indian Position

With respect to computer software applications, in Patents (Amendment) Act, 2002, the scope of non-patentable subject material in the Act was amended to include the following: “a mathematical method or maybe a business method or possibly a computer programme per se or algorithms”.

Nonetheless, the recent amendment modifications (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after getting assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in drugs and agro chemicals, among the seminal amendments this particular Ordinance seeks to take would be to let the patenting of inserted software.
Hence, the amendment means that while a mathematical or even a business method or perhaps an algorithm cannot be patented, a personal computer programme which has a technical software in any sort of market or perhaps which can be incorporated in hardware can be patented. Since any professional application has several industry application and all software programs can be construed as specialized applications, clearly it opens each software patenting.

At any rate, any business enterprise seeking to file a patent application for a program under the Ordinance has to ensure that its invention firstly, follows the three primary tests:

o Inventive Steps

o Novelty

o Usefulness

Therefore, it’s crucial that the software program sought to be protected just isn’t merely a recent model or even a development over a current code.

Further, in accordance with the unique requirements of the Ordinance with regard to patentability of an application, the software must automatically have a technical program to the market or be intrinsic to or “embedded” in hardware. This’s to prevent against any future claims or even litigation of infringements currently being raised, which is a distinct probability even after a patent has been granted.


India for its part seems to have adopted the more conventional strategy of the European patenting norms for an application. But the Ordinance definitely has its relevance and use in modern India, especially for our growing domestic semi conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while making it possible for the industry to grow through inventions and innovations, therefore, mitigating the risks of trivial patents chocking the life from actual innovations as well as inventions. This’s the reason a patent should always be managed as a “double edged sword”, to be wielded with sensitivity and careful attention.
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