India: Section 3(k) Of The India Patents Act, 1970: A Never Ending Challenge For IT Giants

Last Updated: 5 May 2015
Article by Aayush Sharma

Most Read Contributor in India, September 2016

In the Indian Patents system Section 3 holds lot of importance and gathers news because of its complexity and voidable nature. In the past years various judgments are given by the by the honorable court, IPAB or itself by the Controller general of the Patent office to simplify the nature of the section 3. In the recent time, section 3(d) comes in the light and gains lot of importance in the IP industry, but there is one more section i.e. Section 3(K) of the Indian Patents Act, 1970. In this article complexity of section 3(k) will be discussed in support of a recent judgment given by the Hon'ble Delhi High Court.

In one of the recent judgment of Delhi High court where the Intex Delhi-based consumer electronics vendor Intex Technologies (India) Ltd asked to pay royalties to Swedish telecommunications company Telefonaktiebolaget LM Ericsson for infringement of eight patents relating to 2G, 3G and Edge technologies used in mobile phones and tablets.1 The Delhi High court ordered in the favor of Ericsson to pay 50% of the royalties within four weeks from the date of the filling such suit2. The court laid down a vexatious position of law regarding the patentability of computer software. The most clamorous take away from this judgment is about the position of patentability of computer software clarifying section 3(k).

In India there is no patent on the computer software program but only copyright is there on the computer software program. Section 3(k) of the patent act describes that there is no patent on invention of any mathematical or business method or a computer program me or algorithms. The Indian Patent Law does not contains any specific provision regarding the protection of computer software. There are no guidelines or office procedures followed by the Indian patent office regarding computer software. Although, computer programs are not patentable per se, however a claim to a manner of manufacture, which results in a tangible product, which requires the application of an algorithm or a particular computer program, may be patentable.

India has recently prepared itself for providing patent registrations on software. The Indian government has been an active participant in protecting the rights of Copyright holder. Both Department of Electronics and Ministry of Human resource Development have actively helped in bringing amendments to the Indian Copyright Act. Indian copyright act of 1957 is amended to extend its coverage to computer software also. Computer programs received statutory recognition as a `literary work' in 1984 and the definition has been amended and made more specific and precise in the Copyright Amendment Act of 1994. India was one of the first countries in the world to provide statutory protection to computer software and is one of the toughest in the world. According to Section 14 of the Copyright Act, it is illegal to make or distribute copies of copyrighted software without proper or specific authorization3. The only exception is provided by the act, which allows a back up copy purely as a temporary protection against loss, distribution or damage to the original copy. The act prohibits the sale or to give on hire, or offer for sale or hire, any copy of the computer program without specific authorization of the Copyright holder. In this regard software copyright is different from copyright of literary work as they can be resold. Software is licensed to use in a particular machine. Indian law prohibits unauthorized duplication of software for use by different users or machines within an organization. The copyright infringer may be tried under both civil and criminal law. The Act provides for jail term of 7 days to three years and fines ranging between Rs 50,000 to Rs.2, 00,000 and or both. In U.S. law Article 1 and Section 8 of the U.S. constitution establishes that the purpose of the Intellectual property is to serve a broader societal good, the promotion of the progress of science and useful art. Sections 101 of the U.S. code provides whoever invents or discover any new and useful process machine, manufacture or composition of matter, or any new and useful improvement, thereof may obtain a patent. In 1981 in case Diamond vs. Diehr the U.S. supreme court grant order of a patent on invention, substantial part which involved use of a computer which used a well non formula for calculating the time when rubber was cured. The Supreme Court stated that the invention was not merely a mathematical algorithm but a process for molding rubber4. But in India patent act still excludes only computer program me from patentability. The actual problem lies in the innovation character of the Software Patents. The term of 20 years doesn't applicable on software patents as the innovation cycle of the software patents is very less as we can see in the Indian example of Facebook's patent application for Truveo's webcrawler! The other problem of the software Patents is that the Software Patents require more patenting, not in terms of innovation or novality but in different aspects. From the past history of software patenting eligible in US and Europe where software patenting is allowed with lot of restrictions but there can be seen enormous rise in the filing of software patents in both the regions. Such rise in filling of software patenting may be good for USPTO but the filled software patents are not novel5. Considering India's Patents system there is no clear meaning of software given under the patent law of India. Still patent office of India has no opportunity to get patent on computer software program consequences of which only time can tell. Lastly it may be assume that the Intex case will bring a new ray of hope in minimizing the complexity of Section 3 (k) "per se" concept and will take the patent system to new heights and sought of relief for IT companies.







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