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Can Software be Patented in India?

In the background of the Apple-Samsung patent dispute, Judge Posner of the U.S. Court of Appeals expressed his disdain for software patents and its adverse effect on innovation. In this context, it might be worthwhile to examine the issue of software patents in India, especially its legislative history and status today.

The Indian Patent Act currently excludes ‘computer programs per se’ from the scope of inventions that are patentable. So perhaps the more pertinent question is whether software can be patented if it is attached to hardware elements,  This is a controversial issue. In 2004, the President of India promulgated the Patents (Amendment) Ordinance. As a result, Section 3(k) of the Patent Act was split into two sections. The subjects which were not patentable were shifted to the new section 3(ka), including any ‘mathematical method or a business method or algorithm’. The amended Section 3(k) stated that it was note possible to patent “a computer programme per se other than its technical application to industry or a combination with hardware“. This clause carved out an exception, which would have made it possible to patent software in combination with hardware under certain situations. However, the 2004 Patent Ordinance was rejected by Parliament in 2005 when it enacted the Patent (Amendment) Act of 2005, and is therefore no longer applicable.

By rejecting the language contained in the 2004 Ordinance, it appears that the legislature intended to keep software, in combination with hardware or having technical application to industry’ outside the scope of patentability.

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(Image from the public domain)

One could also refer to the Manual of Patent Office Practice and Procedure (2011) which provides sparse guidance how to interpret the Patents Act. Although it is silent on the issue of whether software, in combination with hardware, can be patented, it states that:

if the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se, and hence not patentable. Claims directed at ‘computer programme products’ are computer programmes per se stored in a computer readable medium, and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention.’

Therefore, the Patents Act currently prohibits software patents. Further, computer code which has been copied onto a device and packaged as a software product is also not patentable. The Patent Manual of 2011 seems to suggest that even if the software element of a patent application is not disclosed, a patent examiner is required to identify those specific elements and determine how essential it is to the overall system.  Lastly, business methods and algorithms that are functional but depend on technology cannot be patented. That said, the Indian Patent Office is known to have granted software patents in the past, under very specific circumstances.

(A version of this article was first published on SpicyIP)

About Amlan Mohanty

Amlan is a lawyer based in India. He has been writing about technology and intellectual property for the last five years.