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An Overview of Software Patenting


The concept of “intellectual property” in India during the last few years has used on some epic proportions for several reasons. One of the main reasons, attributable to the growing awareness one of the urban Indian population, is from the significance and, more significantly, the commercial benefits within protecting its intellectual home rights both within as well as outside India. And below traditional principles of rational property protection, patent law would be to encourage scientific research, brand new technology and industrial improvement. The fundamental principle associated with patent law is how the patent is granted just for an invention i. at the. new and useful the said invention should have novelty and utility. The grant of obvious thus becomes of industrial property as well as called an intellectual home. And the computer software is really a relatively new recipient associated with patent protection.

The term “Patent” has its origin in the term “Letter Patent”. This expression ‘Letter Patent’ designed open letter and were instruments underneath the Great Seal of Full of England addressed through the Crown to all the actual subjects at large where the Crown conferred certain privileges and privileges on a number of individuals in the empire. It was in the later the main 19th century new inventions in neuro-scientific art, process, method or types of manufacture, machinery and other substances made by manufacturers were on increased and also the inventors became very much interested how the inventions done by them shouldn’t be infringed by any 1 else by copying all of them or by adopting the techniques used by them. In order to save the interests of creators, the then British rulers passed the Indian Patents as well as Design Act, 1911.

Regarding patentability of software -related innovations, it is currently probably the most heated areas of discussion. Software has become patentable recently in most jurisdictions (although with restrictions using countries, notably those signatories from the European Patent Convention or EPC) and the amount of software patents has increased rapidly.


The term “software” doesn’t have a precise definition as well as the software industries does not give an specific description. But it is essentially used to describe all the different types of pc programs. Computer programs tend to be basically divided into “application programs” as well as “operating system programs”. Application programs are made to do specific tasks to become executed through the computer and also the operating system programs are utilized to manage the internal functions from the computer to facilitate utilization of application program.

Though the term ‘Software patent’ doesn’t have a universally accepted description. One definition suggested through the Foundation for a Free of charge Information Infrastructure is that the software patent is the “patent on any performance of the computer realized by way of a computer program”.

Based on Richard Stallman, the co-developer from the GNU-Linux operating system as well as proponent of Free Software program says, “Software patents tend to be patents which cover software program ideas, ideas which you’d use in developing software program.

That is Software patents refer to patents that may be granted on products or even processes (including methods) including or may include software like a significant or at least necessary a part of their implementation, i. at the. the form in that they can are put in practice (or used) to create the effect they plan to provide.

Early example of the software patent:

On 21st Sep 1962, a British patent software entitled “A Computer Arranged for that Automatic Solution of Linear Encoding Problems” was filed. The invention was worried about efficient memory management for that simplex algorithm, and might be implemented by purely software program means. The patent had been granted on August seventeen, 1966 and seems to be among the first software patents.


Software has traditionally already been protected under copyright regulation since code fits very easily into the description of the literary work. Thus, Software is protected because works of literature underneath the Berne Convention, and any software written is automatically included in copyright. This allows the creator to avoid another entity from copying this program and there is generally you don’t need to register code in order for this to be copyrighted. While Software Patenting has emerged (if only in america, Japan and Europe) exactly where, Patents give their owners the best to prevent others from utilizing a claimed invention, even if it had been independently developed and there is no copying involved.

Additional, it should be mentioned that patents cover the actual underlying methodologies embodied in a given software program. On the other copyright laws prevents the direct duplicating of software, but don’t prevent other authors from writing their very own embodiments of the fundamental methodologies.
The issues involved with conferring patent rights in order to software are, however, much more complex than taking out copyrights in it. Specifically, there are two challenges that certain encounters when dealing along with software patents. The first is all about the instrument of patent itself and if the manner of protection it confers is suitable for the software industry. The second reason is the nature of software program, and whether it ought to be subject to patenting.

Nevertheless, issues involved in conferring obvious rights to software are much more complex than taking out copyrights in it. Specifically, there are two challenges that certain encounters when dealing along with software patents. The first is all about the instrument of patent itself and if the manner of protection it confers is suitable for the software industry. The second reason is the nature of software and whether it ought to be subject to patenting.

a) Various Subject Matters

Copyright protection reaches all original literary functions (among them, computer programs), spectacular, musical and artistic functions, including films. Under copyright laws, protection is given and then the particular expression of the idea that was adopted and never the idea itself. (For example, a program to include numbers written in 2 different computer languages might count as two different expressions of 1 idea) Effectively, independent rendering of the copyrighted work by a 3rd party would not infringe the actual copyright.

Generally patents tend to be conferred on any ‘new’ as well as ‘useful’ art, process, method or types of manufacture, machines, appliances or other articles or substances made by manufacture. Worldwide, the attitude towards patentability of software may be skeptical.

b) Who may claim the best to a patent /copyright?

Usually, the author of the literary, artistic, musical or dramatic work automatically becomes who owns its copyright.

The obvious, on the other hand is granted towards the first to apply for this, regardless of who the very first to invent it had been. Patents cost a fortune. They cost even much more paying the lawyers to create the application than they cost to really apply. It takes typically some years for that application to get regarded as, even though patent offices do an incredibly sloppy job of thinking about.

c) Rights conferred

Copyright law provides the owner the exclusive to reproduce the material, concern copies, perform, adapt and translate the job. However, these rights are tempered through the rights of fair use that are available to the open public. Under “fair use”, certain uses of copyright material wouldn’t be infringing, such because use for academic reasons, news reporting etc. Additional, independent recreation of a copyrighted work wouldn’t constitute infringement. Thus when the same piece of code were independently produced by two different companies, neither might have a claim against another.
A patent confers about the owner an absolute monopoly that is the right to avoid others from making, utilizing, offering for sale without having his/her consent. In common, patent protection is a far stronger approach to protection than copyright since the protection extends to the amount of the idea embodied with a software and injuncts ancillary uses of the invention as well. It would weaken copyright in software that’s the base of all Western software development, because independent creations protected by copyright will be attackable by patents. Many patent applications cover really small and specific algorithms or techniques which are used in a multitude of programs. Frequently the “inventions” mentioned inside a patent application have been independently formulated and therefore are already in use by other programmers once the application is filed.

d) Length of protection

The TRIPS agreement mandates a period of time of at least two decades for a product obvious and 15 years regarding a process patent.

With regard to Copyright, the agreement prescribes the absolute minimum period of the time of the author plus 70 years.


Substantive law concerning the patentability of software as well as computer-implemented inventions, and situation law interpreting the lawful provisions, are different below different jurisdictions.

Software patents below multilateral treaties:

o Software program patents under TRIPs Contract

o Software patents underneath the European Patent Convention

o Computer programs and also the Patent Cooperation Treaty

Software program patenting under TRIPs Contract

The WTO’s Agreement on Trade-Related Facets of Intellectual Property Rights (TRIPs), especially Article 27, are susceptible to debate on the international legal framework for that patentability of software, and on whether software program and computer-implemented inventions should be thought about as a field associated with technology.

According to Artwork. 27 of TRIPS Contract, patents shall be readily available for any inventions, whether items or processes, in just about all fields of technology, provided that they’re new, involve an inventive step and can handle industrial application. (… ) patents shall be accessible and patent rights enjoyable without discrimination regarding the place of invention, the actual field of technology as well as whether products are brought in or locally produced. inch

However, there have already been no dispute settlement methods regarding software patents. Its relevance for patentability within the computer-implemented business methods, and software it remains uncertain, since the TRIPs agreement is susceptible to interpretation.

Software patents underneath the European Patent Convention

Within Eu member states, the EPO along with other national patent offices possess issued many patents with regard to inventions involving software because the European Patent Convention (EPC) arrived to force in the past due 1970s. Article 52 EPC excludes “programs with regard to computers” from patentability (Art. 52(2)) towards the extent that a patent application pertains to a computer program “as such” (Art. 52(3)). It’s been interpreted to imply that any invention which can make a non-obvious “technical contribution” or even solves a “technical problem” inside a non-obvious way is patentable even though a computer program can be used in the invention.

Computer-implemented inventions which only solve a company problem using a pc, rather than a specialized problem, are considered unpatentable because lacking an inventive action. Nevertheless, the fact that an invention is advantageous in business does not mean it’s not patentable if it additionally solves a technical issue.

Computer programs and the actual Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is definitely an international patent law treaty, which supplies a unified procedure with regard to filing patent applications to safeguard inventions. A patent application filed underneath the PCT is called a global application or PCT software. Under the PCT, the international search and also the preliminary examination are carried out by International Searching Government bodies (ISA) and International Initial Examining Authority (IPEA).


However, before we start hailing the advent of the new era and equating the actual patenting of software in India it might be well worth our while to consider a pause and look at the realities of software program patenting. We could do that by looking at types of countries in which software patenting has become the order from the day, such as in america and Japan.

United Says

The United States Obvious and Trademark Office (USPTO) offers traditionally not considered software to become patentable because by law patents can only end up being granted to “processes, devices, articles of manufacture, as well as compositions of matter”. we. e. In particular, patents can’t be granted to “scientific truths” or “mathematical expressions” of these. The USPTO maintained the positioning that software was essentially a mathematical algorithm, and for that reason not patentable, into the actual 1980s. This position from the USPTO was challenged having a landmark 1981 Supreme Courtroom case, Diamond v. Diehr. The case involved a tool that used computer software to guarantee the correct timing when heating system, or curing, rubber. Although the software was the integral the main device, it also had other functions that associated with real world manipulation. The court then ruled that like a device to mold rubberized, it was a patentable item. The court essentially dominated that while algorithms themselves couldn’t be patented, devices which utilized them could.

However in 1982 the U. Utes. Congress created a brand new court i. e the Federal Circuit to know patent cases. This courtroom allowed patentability of software program, to be treated uniformly through the US. Due to several landmark cases in this particular court, by the early 1990s the actual patentability of software was more successful.

Moreover, Several successful litigations display that software patents are now enforceable in america. That is the cause, Patenting software has become widespread in america. As of 2004, around 145, 000 patents had issued within the 22 classes of patents addressing computer implemented inventions.


Software is directly patentable within Japan. In various litigations within Japan, software patents happen to be successfully enforced. In 2005, for instance, Matsushita won a courtroom order barring Justsystem through infringing Matsuhita’s Japanese obvious 2, 803, 236 addressing word processing software.

Indian native Position

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

However, the current amendment changes (Ordinance, 2004), that amends the Patents Behave, 1970, has been promulgated after receiving assent in the President of India and it has came into effect through 1st Jan., 2005. Aside from change in pharmaceuticals as well as agro chemicals, one from the seminal amendments this Ordinance seeks to create is to permit the actual patenting of embedded software program.
Hence, the amendment implies that while a mathematical or perhaps a business method or an algorithm can’t be patented, a computer programme with a technical application in any industry or which may be incorporated in hardware could be patented. Since any commercial software program has some industry software and all applications could be construed as technical programs, obviously it opens just about all software patenting.

In any kind of case, any company trying to file a patent application for software underneath the Ordinance should ensure which its invention firstly, comes after the three basic assessments:

o Inventive Steps

to Novelty

o Usefulness

Consequently, it is important how the software sought to be protected isn’t merely a new version or a noticable difference over an existing signal.

Further, in accordance with the particular requirements of the Ordinance regarding patentability of software, the program should necessarily have a technical application towards the industry or be innate to or “embedded” within hardware. This is to avoid against any future lawsuit or claims of infringements becoming raised, which is a definite probability even after a patent may be granted.


India for its part has adopted the more conservative approach from the European patenting norms with regard to software. But the Ordinance certainly has its use and relevance in the current India, particularly for the growing domestic semi- conductor business. This, along with judicial tempering may definitely ensure a judicious utilization of patent protection while allowing the to grow through improvements and inventions, thereby, mitigating the risks associated with trivial patents chocking the life span out of real improvements and inventions. This ‘s the reason a patent should continually be treated as a “double edged sword”, to become wielded with caution as well as sensitivity.

Now whether, in reality this is implemented on a rigid basis or will end up broad in scope through application (as within the U. S. ), as well as, more importantly, whether the actual Ordinance would, in truth, result in increased innovation and inventions within the software industry, remains to become seen.



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