Patenting A Software
By Team Legistify / 2017-07-06
Patenting a software lies midway between the functionality that is desired and the code that is written to achieve it. This makes defining it all very difficult, especially for those who are new to the area of patents.

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In India Section 3 of the Patent Act, 1970 enumerates a list of things that are not considered as inventions (and are hence not patentable). Section 3(k) refers to a ‘computer programme per se’. This means that you cannot get a patent for a software program by itself in India. However, you can get a software patent in India for a software invention in conjunction with hardware.

The logic behind denying patents for software per se in India is to promote innovation. If software, per se , is patented a majority of the software inventions will be owned by a minority of firms. This scenario is unimaginable in a developing country like India, where programmers must be given the freedom to innovate. To develop better software’s programmers or coders must have access to the open source software. Keeping in line with this spirit, Section 3(k) does not allow software patents without hardware applicability.

At this point, it is important to note that Section 3(k) does not intend to place a blanket ban on software patents in India . It only says that computer programs per se are not patentable. The phrase ‘computer programs per se’ has not been defined and it has therefore been the source of some ambiguity. To this end, the Government passed Guidelines that help define the extent or rather the manner in which software inventions are patentable.

Old Guidelines on Software Patent

The fear was that these guidelines would greatly benefit multinational corporations, which have the funds to obtain expensive patents and manage patent litigation, as against smaller software developers. The broadly worded regulations could open up floodgates of patent applications which, if granted, would greatly stifle innovation in the software industry. These Guidelines were stayed by the Indian Patent Office on December 14, 2015.

Patenting a software lies midway between the functionality that is desired and the code that is written to achieve it. This makes defining it all very difficult, especially for those who are new to the area of patents.

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Get connected to the Best Lawyers and Chartered Accountants Near You!


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