An Overview of Software Patenting


The concept of “intellectual property” in India over the last few years has had on a few epic proportions for a lots of causes. Among the main factors, attributable to the expanding awareness among the urban Indian population, is of the significance and, more importantly, the commercial advantages in protecting the intellectual property rights of its both within as well as outside India. And under traditional guidelines of intellectual property protection, patent law is usually to encourage scientific research, new technology and industrial progress. The fundamental idea of patent law is the fact that the patent is given only for an invention i.e. different and comfortable the said invention should have novelty and utility. The grant of patent thus becomes of industrial home and in addition called an intellectual property. Plus the computer program is a relatively new recipient of patent protection.

The idea of “Patent’ has its beginnings out of the term “Letter Patent’. This expression’ Letter Patent’ intended open letter and were instruments under the Great Seal of King of England resolved by the Crown to all the topics as a whole where the Crown conferred a number of rights and privileges on a single or even more individuals in the kingdom. It had been in the later part of the 19th century new inventions within the field of art, process, method or manner of manufacture, machinery and other substances produced by manufacturers happened to be on increased and also the inventors became a lot interested that the inventions performed by them should not be infringed by anyone else by replicating them or even by adopting the techniques utilized by them. To save the interests of inventors, the subsequently British rulers enacted the Indian Patents and Design Act, 1911.

With value to patentability of program related inventions, it is presently one of the most heated areas of debate. Software is becoming patentable in the past few years in many jurisdictions (although with restrictions in specific countries, notably many signatories of the European Patent Convention or The number as well as epc) of software patents has risen rapidly.


The term “software” does not have a precise definition as well as the software program industries fails to give a certain definition. But it’s essentially used for describing all the many types of computer programs. Computer programs are generally divided into “application programs” and “operating system programs”. Application programs are intended to do particular tasks being executed through the pc along with the os plans are used-to be in charge of the internal features of the laptop to facilitate use of application program.

Though the term’ Software patent’ doesn’t have a universally accepted definition. One definition suggested by the Foundation for a free Information Infrastructure is the fact that a software patent is a “patent on any overall performance of a computer realized by means of a computer program”.

According to Richard Stallman, the co developer of the GNU Linux operating system and proponent of Software which is free states, “Software patents are patents which make up software strategies, suggestions which you will utilize in developing application.

That is Software patents mention patents which usually may be granted on processes or products (including methods) including or perhaps may include software as a substantial or at least necessary part of the implementation of theirs, i.e. the form in which they’re put in practice (or used) to produce the effect they plan to provide.

Early instance of an 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 innovation was concerned with effective memory management for the simplex algorithm, as well as may be applied by strictly software means. The patent was given on August seventeen, 1966 and appears to be among the first software patents.


Software has traditionally been protected under copyright law since code fits very easily to the explanation of a literary work. Hence, Software is protected as works of literature under the Berne Convention, so any software written is instantly covered by copyright. This enables the creator to prevent another entity from duplicating the program and there’s generally zero need to register code for it to become copyrighted. While Software Patenting has recently emerged (if only in the US, Europe and Japan) where, Patents give their owners the perfect to stop others from making use of a claimed invention, even if it had been independently put together and there was simply no copying for you.

Further, it needs to be noted that patents deal with the underlying methodologies embodied in a given piece of an application. On another copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the main methodologies.
The difficulties linked to conferring patent rights to software program are, however, a lot more advanced than removing copyrights on them. Specifically, 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 way of safeguard it confers is suited to the software industry. The 2nd is the design of computer software, as well as whether it ought to be governed by patenting.

Nevertheless, troubles involved in conferring patent rights to application are a lot more complex than removing copyrights on them. Particularly, you’ll find 2 challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the way of protection it confers is best for the software industry. The next is the character of software program and whether it ought to be subject to patenting.

a) Different Subject Matters

Copyright protection extends to other original literary works (among them, computer programs), significant, artistic and musical works, which includes films. Under copyright, protection is included simply to the actual expression of an idea which was adopted instead of the idea itself. (For instance, a system to add numbers composed in 2 different computer languages would count as two distinct expressions of just one idea) Effectively, self reliant rendering of a copyrighted work by a third party wouldn’t infringe the copyright.

Typically patents are conferred on any’ new’ and’ useful’ art, process, method or manner of manufacture, devices, appliances or other articles or substances produced by manufacture. Globally, the outlook towards patentability of software have been skeptical.

b) Who might lay claim to the right to a patent /copyright?

In general, the author of a literary, artistic, musical or dramatic work automatically turns into the master of its copyright.

The patent, on the other hand is given to the very first to use for it, no matter who the first to invent it had been. Patents cost a great deal of cash. They cost a lot more paying the lawyers to create the application program than they cost to actually apply. It takes typically a few years for the application being viewed, although patent offices do an incredibly sloppy task of considering.

c) Rights conferred

Copyright law gives the owner the exclusive right to recreate the material, perform, issue copies, adjust and translate the task. However, these rights are tempered by the rights of considerable use which exist to the public. Under “fair use”, some uses of copyright material wouldn’t be infringing, such as using for academic purposes, information reporting etc. Additionally, self reliant recreation of a copyrighted hard work wouldn’t constitute infringement. Thus if similar piece of code were independently developed by two different companies, neither would’ve a claim against the other.
A patent confers on the owner a complete monopoly which is the right to stop others from making, using, offering on the market without his/her consent. In most cases, patent protection is a far more powerful method of safety than copyright because the safety includes the levels of the idea embodied by a software and injuncts ancillary uses of an invention too. It would weaken copyright in an application that is the root of all European software development, because independent creations protected by copyright would be attackable by patents. Many patent applications cover tiny and specific techniques or algorithms that are utilized in a number of programs. Frequently the “inventions” mentioned in a patent application were independently formulated and are already in use by other programmers when the application is submitted.

d) Duration of protection

The TRIPS agreement mandates a period that is at least twenty years for a product patent and fifteen years in the case of a process patent.

For Copyright, the agreement prescribes a minimum period of the lifetime of the writer plus 70 years.


Substantive law about the patentability of software program and computer implemented inventions, and case law interpreting the authorized provisions, are not the same 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 also the Patent Cooperation Treaty

Software patenting under TRIPs Agreement

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), especially Article 27, are subject to debate on the international legal framework of the patentability of software program, and on whether software and computer implemented inventions should be thought as an area of technology.

Based upon Art. twenty seven of TRIPS Agreement, patents shall be accessible for any inventions, whether processes or products, in all fields of technology, provided they’re modern, involve an inventive step and are in a position of industrial application. (…) patents shall be for sale as well as patent rights enjoyable without discrimination regarding the place of invention, the subject of engineering and whether things are imported or perhaps locally produced.”

However, there are already no dispute settlement procedures regarding software patents. The relevance of its 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 as well as other national patent workplaces have issued many patents for inventions involving software program since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application pertains to a laptop program “as such” (Art. 52(3)). This was construed to imply that any sort of creation and that tends to make a non-obvious “technical contribution” or even solves a “technical problem” in a non obvious way is patentable even when a computer program is applied in the invention.

Computer-implemented inventions that only solve a company issue with a laptop or computer, as opposed to a technical issue, are thought unpatentable as lacking an inventive step. Nevertheless, the point that an invention is beneficial in business doesn’t mean it is not patentable if additionally, it solves a specialized issue.

computer programs and The Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is a global patent law treaty, which in turn gives a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international PCT or even application application. Under the PCT, the international search and the preliminary examination are done by International Searching Authorities (ISA) as well as International Preliminary Examining Authority (IPEA).


However, before we begin hailing the arrival of the latest era and equating the patenting of software in India it would be worth our while to take a pause and take a look at the realities of an application patenting. We will do this by looking at examples of countries where software patenting has turned into the order of the day, like inside the US and Japan.

United States

The United States Trademark and Patent Office (USPTO) has usually not considered applications being patentable because by statute patents are only able to be given to “processes, devices, articles of manufacture, and compositions of matter”. i.e. In particular, patents cannot be granted to “mathematical expressions” or “scientific truths” of them. The USPTO maintained the position that will software was in effect a mathematical algorithm, and therefore not patentable, into the 1980s. This role of the USPTO was stunted with a landmark 1981 Supreme Court case, Diamond v. Diehr. A device that used computer software to make certain the correct timing when heating, or perhaps curing, rubber were involved by the case. Although the software package was the fundamental component of the device, it also had other functions that connected with real world 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, units that applied them could.

But in 1982 the U.S. Congress developed a brand-new court i.e the Federal Circuit to listen to patent cases. This court allowed patentability of a software application, to be taken care of uniformly throughout the US. On account of several landmark cases in this particular court, by the first 1990s the patentability of software was more developed.

Additionally, Several successful litigations demonstrate that software patents are enforceable in the US. That is the explanation, Patenting software program has become prevalent in the US. As of 2004, roughly 145,000 patents had released in the 22 classes of patents covering pc implemented inventions.


Software is exclusively patentable in Japan. In various litigations in Japan, software program patents have been properly enforced. In 2005, for instance, Matsushita earned a court order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 overlaying word processing application.

Indian Position

With respect to computer software applications, in Patents (Amendment) Act, 2002, the range of non patentable subject matter in the Act was amended to add the following: “a mathematical method or perhaps a business method or possibly a computer program per se or algorithms”.

Nevertheless, the latest amendment modifications (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in synthetic drugs plus agro chemicals, among the seminal amendments this particular Ordinance seeks to bring may be to permit the patenting of embedded software.
Thus, the amendment means that while a mathematical or perhaps a business method or perhaps an algorithm can’t be patented, a computer programme which includes a technical program in any industry or perhaps that are usually integrated in hardware can be patented. Since any professional software has several industry application and all programs could be construed as complex applications, clearly it opens all the software patenting.

At any rate, any business seeking to file a patent application for an application under the Ordinance has to make sure that its invention first of all, follows the three fundamental tests:

o Inventive Steps

o Novelty

o Usefulness

Thus, it’s important that the software sought to be protected is not simply a different model or even a development over an existing code.

Additionally, in accordance with the exact demands of the Ordinance with regard to patentability of software, the software must necessarily have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any succeeding claims or litigation of infringements getting raised, that is a distinct probability despite a patent has been given.


India for its part appears to have adopted the more conventional strategy of the European patenting norms for a software application. But the Ordinance certainly has its relevance and use in today’s India, particularly for our growing domestic semi conductor industry. This, along with judicial tempering may definitely guarantee a judicious use of patent protection while enabling the market to grow through innovations and inventions, therefore, mitigating the odds of little patents chocking the life out of actual innovations and inventions. This is the reason a patent should be regarded as a “double edged sword”, to be wielded with extreme care and sensitivity.
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