An Analysis of Software Patents

Software Patents are patents that ensure programming structures and thoughts. These structures and thoughts are later utilized being developed programming. A patent may limit others from creating programming programs that actualize a capacity in a certain manner or keep others from utilizing certain calculations. Various nations have distinctive programming patent insurance. To get patent security, programming applications must concur with both formal and meaningful prerequisites. These prerequisites can be legitimately and perplexing, and their understanding frequently needs lawful specialists’ help. This report investigation the requirements and results of programming protecting and attempts to respond to the inquiry if programming ought to be licensed or not. This article also discusses software patents in totality and its actual relevance in an Indian context.

“Software patents are dangerous to software developers because they impose monopolies on software ideas.”

Richard Stallman


The concept of “Intellectual Property” in India in the course of the most recent couple of years has taken on some amazing magnitude for various reasons. One of the essential reasons, inferable from the developing mindfulness among the urban Indian populace, is of the criticalness and, all the more significantly, the business benefits in securing its protected innovation rights both inside and outside India. Also, under conventional standards of licensed innovation security, patent law is to empower logical examination, innovation, and mechanical advancement. The key rule of patent law is that the patent is conceded uniquely for innovation, for example, new and valuable the said innovation must have curiosity and utility. The award of the patent, therefore, is the fate of mechanical property and called a licensed innovation. Also, PC programming is a generally new beneficiary of patent insurance.

The expression “Patent” has its beginning from the expression “Letter Patent”. This articulation ‘Letter Patent’ implied open letter and were instruments under the Great Seal of King of England tended to by the Crown to all the subjects everywhere in which the Crown presented certain rights and benefits on at least one person in the realm. To spare the interests of innovators, the then British rulers established the Indian Patents and Design Act, 1911.

“I think software patents are a bad idea. Many patents are given for trivial inventions.”

Larry Wall

As for the patentability of programming – related innovations, it is as of now one of the most warmed regions of discussion. Programming has gotten patentable as of late in many wards (even though with limitations in specific nations, remarkably those signatories of the European Patent Convention or EPC) and the number of programming licenses has risen quickly.

Meaning of Software Patenting

The expression “software” doesn’t have an exact definition, and even the product enterprises neglect to give a particular definition. Yet, it is fundamentally used to portray the entirety of the various kinds of PC programs. PC programs are essentially partitioned into “application programs” and “working framework programs”. Application programs are intended to do explicit assignments to be executed through the PC, and the working framework programs are utilized to deal with the inward elements of the PC to encourage utilization of use program.

Even though the term ‘Software patent’ doesn’t have an all-around acknowledged definition. One definition proposed by the Foundation for a Free Information Infrastructure is that a product patent is a “patent on any presentation of a PC acknowledged by methods for a PC program”.

As indicated by Richard Stallman, the co-designer of the GNU-Linux working framework and advocate of Free Software says, “Programming licenses are licenses which spread programming thoughts, thoughts which you would use in creating programming.

Software licenses allude to licenses that could be conceded on items or procedures (counting strategies) which incorporate or may incorporate programming as a critical or if nothing else essential piece of their execution, for example, the structure where they are placed practically speaking (or used) to deliver the impact they plan to give.

An early example of a product patent

On 21st September 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was recorded. The creation was worried about effective memory the executives for the simplex calculation and might be actualized by absolute programming implies. The patent was conceded on 17th August 1966, and is by all accounts one of the primary programming licenses.

Statutory provisions involved

The (Indian) Patents Act, 1970 (hereinafter alluded as “Patents Act”/“Act”) as altered modern characterizes the word ‘creation’ under section 2(i)(j) as another item or procedure including an innovative advance and fit for mechanical application. According to section 2(1)(a) of the Act, “innovative advance” signifies a component of a creation that includes specialized development when contrasted with the current information or having monetary importance or both, and that makes the innovation not clear to an individual gifted in the craftsmanship.

Further, Section 2(1)(ac) of the Act expresses that “fit for mechanical application”, comparable to innovation, implies that the development is fit for being made or utilized in industry.

Section 2 (1) (l) characterizes “new creation” in The Indian Patents Act, 1970 as follows:

“New creation” signifies any innovation or innovation which has not been foreseen by distribution in any archive or utilized in the nation or somewhere else on the planet before the date of documenting of a patent application with complete particular, for example, the topic has not fallen in open space or that it doesn’t frame some portion of the best in class.

Anyway, what is a programming patent? It is a patent on any exhibition of a PC acknowledged by methods for a PC program. India was the principal nation on the planet to give legal security to the product through the Copyright Act. Yet, from that point, the excursion has been very delayed as in this period of web, there is a requirement for more insurance to the product, and we are as yet an old fashioned concerning the equivalent. The impact of ‘Make in India Campaign, hackathons, programming developments, and the adolescent support is seriously alleviated as India can’t give insurance, programming merits. About 60% of all make in India is occurring through the product. IBM enlisted 8088 licenses in a year, and 30% of which were documented for the sake of Indian creators. The need for great importance is desperate and outrageous to perceive the product not only as an abstract work but rather as something which is designed on a standard premise.

The Patents (Amendment) Act, 2002 likewise presented express avoidances from patentability under section 3 for Computer-Related Inventions (CRIs) as under:

  • a scientific or business strategy or a PC program in essence or calculations;
  • a scholarly, sensational, melodic or masterful work or some other stylish creation at all including cinematographic works and TV creations;
  • an insignificant plan or rule or technique for Actformingmental Act or strategy for playing the game;
  • an introduction of data;
  • the geology of incorporated circuits.

The administrative purpose of connecting “in essence” to software is clear by the accompanying perspective communicated by the Joint Parliamentary Committee while presenting Patents (Amendments) Act, 2002:

“In the new proposed statement (k) the words “as such” have been embedded. This change has been proposed because occasionally the PC program may incorporate certain different things, subordinate thereto or grew consequently. The aim here isn’t to dismiss them for the award of the patent if they are creations. Be that as it may, the PC programs as such are not expected to be conceded a patent. This change has been proposed to explain the reason.”

Indian scenario

Concerning computer software, in Patents (Amendment) Act, 2002, the extent of the non-patentable topic in the Act was revised to incorporate the accompanying: “a numerical strategy or a business technique or a PC program as such or calculations”.

Be that as it may, the ongoing correction changes (Ordinance, 2004), which revises the Patents Act, 1970, has been declared in the wake of accepting consent from the President of India and has become effective from 1st January 2005. Aside from the change in pharmaceuticals and agro synthetic concoctions, one of the fundamental alterations this Ordinance tries to bring is to allow the licensing of implanted programming.

Thus, the alteration implies that while a scientific or a business strategy or a calculation can’t be licensed, a PC program which has a specialized application in any industry or which can be fused in equipment can be protected. Since any business programming has some industry application and all applications can be interpreted as specialized applications, it opens all product licensing.

Regardless, any organization looking to record a patent application for programming under the Ordinance ought to guarantee that its development right off the bat, follows the three fundamental tests:

  • Inventive Steps
  • Novelty
  • Usefulness

Thus, it is significant that the product looked to be secured isn’t simply another adaptation or an improvement over a current code.

Further, as per the particular prerequisites of the Ordinance concerning the patentability of programming, the product ought to essentially have a specialized application to the business or be natural for or “implanted” in equipment. This is to forestall against any future prosecution or cases of encroachments being raised, which is a particular likelihood significantly after a patent has been conceded.

Case laws

There have been a few cases in India concerning the product patent cases, and the issues identifying with the licenses have been talked about in the equivalent. Probably the most significant case laws are as under:

Electronic Navigation Research Institute vs Controller General of Patents

This case was in connection with the patent application number 3624/DELNP/2005 for the development named “A CHAOS THEORETICAL EXPONENT VALUE CALCULATION SYSTEM” in which the patent office denied the application on the ground that the proposed framework fell under the class of numerical formulae regardless of whether it brought about specialized impacts. The innovation asserted a numerical technique to decide and assess the time signals.

Yippee vs Controller of Patents and Rediffcom India Limited

For this situation, Section 3(k) was talked about in extraordinary detail, and the patent application was dismissed attributable to a plan of action being encapsulated using innovation. It was inferred that the plan of action masked as mechanical advancements would not meet the rules for the licenses being allowed in India.

On account of Yahoo, the patent cases included highlights of a product instrument focusing on search terms pertinent to Yahoo’s business. As needs are, the IPAB reasoned that the specialized development proposed by Yahoo was essentially a technique for working together, regardless of whether it was an, in fact, more brilliant method of working together and, in this manner, can’t be licensed as per arrangements of Section 3(k) of the licenses demonstration.

Accenture worldwide assistance GMBH vs the associate controller of Patents and Designs

This case identifies with Indian patent application number 1398/DELNP/2003, which is presently a conceded patent as patent number 256171. This patent application was at first denied for patent enlistment by the patent office under the arrangements of Section 3(k) of the Indian licenses act.

Be that as it may, the patent candidate advanced before the IPAB, and according to the Controller’s choice, it was held that the moment creation is guaranteed isn’t programming as such yet, a framework is asserted which is having the improvement in web administrations and programming. As needs are, it was held that the creation since not falling into the classification of section 3(K), viz programming fundamentally, relating complaint was postponed and the patent was allowed.

Enercon India Limited vs Aloys Wobben, Germany

In this specific case, development was introduced, which had the computerized ventures for controlling the breeze turbine which relied upon the outside conditions by the utilization of the PC framework. The board concluded that it was not simply a PC programming essentially or a lot of rules or methodology like calculations and accordingly its patentability can’t be protested to. The patent application was conceded.


Simply because the product is a code, doesn’t mean it ought not to be licensed as the present time is that of the web which is again founded on the code. To spare the mechanical advancements and advance it, it is essential that even the codes ought to be licensed. Even though India was the principal country to give legal security to the product, it has lingered behind in the zone of programming protecting. However, the USA has understood its significance. Even though there are a few negative marks of the thought, however, the benefits far exceed the faults. It has become the need of great importance to advance our laws with the goal that we may advance the mechanical headways in the nation.

In general, insurance of computer software in India is under the copyright laws, itself. Be that as it may, there is an extent of assurance of exacting and non-strict pieces of the product, reasonable use measures, and creators directly under the ambit of permit understandings which is yet to be found and perceived by the Indian courts. It is additionally presumed that such a program can likewise be ensured under the patent laws given that it isn’t only a calculation based programming; however, is an innovation in essence. With no appropriate enactment characterizing the extent of assurance of programming as a proprietary advantage, the proprietary advantage appears as a constrained and limited alternative for insurance of IP vested in the product. 

In such a progressing and developing computerized period, having such restricted choices for assurance of one’s unique work in the field of programming and PCs may prompt the absence of advancement and imagination approaching. Consequently, it is necessary that every one of these laws which are so dissipated and ambiguously made, be created and set up for better insurance of the maker’s work. Yet, the Ordinance unquestionably has its utilization and significance in present India, especially for our developing residential semi-conductor industry. This, alongside legal treating, may guarantee a wise utilization of patent insurance while permitting the business to develop through advancements and creations, in this way, relieving the dangers of insignificant licenses chocking the life out of genuine developments and innovations. This is the explanation a patent ought to consistently be treated as a “twofold edged blade”, to be used with alert and affectability.

Frequently asked questions

  1. What do you mean by “software patenting”?
  2. What is the relevance of software patents in India?
  3. What are the statutory provisions and acts involved that govern software patents in India?
  4. What are the Indian case laws that are related to this theme?
  5. What is the meaning of software patents in an Indian scenario?


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