On 24th March, 20151 the Indian Patent Office refused a patent for Facebook's application Crawler. An application for patent numbered 4436/DELNP/2007 titled "METHOD AND APPARATUS FOR AN APPLICATION CRAWLER" was filed by the applicant Truveo Inc., which is a search engine for Internet videos. The said patent application was later assigned to Facebook by the way of Form-6 (Change in Applicant).
Crawler can be defined as an algorithm based software that visits web sites and reads their pages and other information in order to create entries for a search engine index. Major search engines like Google, Yahoo, and Bing have such crawlers that are programmed to visit sites that have been submitted by their owners as new or updated.
Objections raised by the Controller2:
The Patent Office cited the following reasons for the rejection of patent application 4436/DELNP/2007.The complete specification of the aforesaid invention did not describe the invention fully and particularly as required by Section 10(4) of the Patents Act, 1970. Further the method claims represent mere algorithm implemented through software which is not patentable under section 3(k) of the Patents Act, 1970. The claims were found to be mere scheme to implement the claimed method which was not allowed under section 3(m) of the Patents Act, 1970.
With regards to the subject matter of the claimed invention, the claims do not constitute an invention in view of lack of inventive step under section 2(1)(ja) of the Patents Act, 1970.
Non- patentable aspects of Software Programs/Algorithms/Methods:
A hearing was held on 10/12/2014, during which the Applicant presented their arguments. The invention comprises of 17 claims. Out of 17 claims, claims 1-10 are apparatus claims; claim no.11 is method claim and claims 12-17 are method claims.
The controller observed that the apparatus or system claims are purely functional in nature and do not have any inventive hardware features as such. After careful analysis of the claims, the controller opined that the only physical features mentioned and claimed therein are a processor or memory and an application crawler (software tool) when apparatus and system claims are taken into consideration. The rest of the claims are functional and describe repetition of algorithmic method steps. By stating the above, the Controller is of the view that the alleged inventive step does not lie in the apparatus or system claims, but only in the method which is performed by the application crawler, a software tool.
The functionality of the application crawler is to thoroughly search the Internet for files such as, but not limited to video files, media files, multimedia streaming services, and/or non-static file types and for information such as, but not limited to text strings, images, nodes of a document object model, and/or other classes of data objects, which are typically contained within a modern web application.
Implications of Section 2(1)(j) and Section 3(k)
Section 2(1)(j) of the Indian Patents Act 1970, states that '"invention" means a new product or process involving an inventive step and capable of industrial application;'
Section 3(k) of the Indian Patents Act 1970, states that 'a mathematical or business method or a computer programme per se or algorithms;' are non-patentable.
It is clear from the above said functionality aspect of the apparatus/ system claims, there exists no novel inventive hardware features and merely claims for functionality of the application crawler which is a mere the internet. As the apparatus/system claims remain purely functional and in the absence of any novel and inventive hardware features, such claims are not allowable u/s 2(1)(j) and 3(k) of the Patents Act.
The Assistant Controller further referred to the manual of patent office vide para 08.03.05.10, pages 91 and 92 which clearly state the following:
"Algorithms in all forms including but not limited to, set of rules or procedures or any sequence of steps or any method expressed by way of a finite list of defined instructions, whether for solving a problem or otherwise, and whether employing a logical, arithmetical or computational method, recursive or otherwise, are excluded from patentability"
From the above reference, 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 per se stored in a computer readable medium and as such are not allowable.
Further, the Assistant Controller mentioned "Even in 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."
Claimed method in 4436/DELNP/2007 merely illustrates the methodology to create a searchable database and crawl objects in the object space or object model of a document or application on the Internet achieved by mere software means. The invention merely claims for algorithm for crawling objections implemented by means of application crawler which is a software tool. As the claimed method does not disclose any hardware features associated with the apparatus/system in carrying out the said method, indicates that the inventive concept lies in the programming methodology. Programming methods/ algorithms are software centric hence there is do not exhibit any hardware limitations. In view of the above explanation, the Asst. Controller concluded that it is understood that mere computer programming/ software performed by the processor are being claimed in the form of method steps and hence the method claim is not allowed u/s 3(k) of the Patents Act.
Clarity of claims :
The Assistant Controller further cited that the claims are not clear as the invention did not disclose by what hardware features these method steps are being enabled in the method to make the method function as required u/s 10(4) of the Patents Act, 1970. Therefore, Patent office rejected the above application stating that the claims were wholly software-centric, with patent application in entirety being for the software and algorithm itself – a claim which was not allowed under Section 3(k). The application was refused u/s 15 of the Indian Patents Act, 1970.
The Indian Patents Act excludes 'computer programs per se' from patentability. The lack of hardware limitations throughout the claims, as well as in description and illustrations itself serves as a fact that the alleged invention lies only in the software or algorithm which is implemented by means of any conventional computer system or processor.
1. http://www.financialexpress.com/article/industry/companies/ facebook-denied-patent-for-crawler-in-india/57183/
2. http://ipindiaservices.gov.in/patentdecisionsearch/ VIewdoc.aspx?application_number=KYe/TPklTVSCR5eQyTeOrTEL0VABLjHe4fiWIZDjCTOLTy275vLv3YiJS8cYw7xLRwSppq+ wQg3qw+roEsiFig==
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