3 September 2021

Examining Software Patents: Laws And The Debate Surrounding It

Khurana and Khurana


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Typically, software can be defined as a set of instructions in codes used to operate computers or execute a particular pre-programmed task.
India Intellectual Property
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Typically, software can be defined as a set of instructions in codes used to operate computers or execute a particular pre-programmed task. The Britannica Encyclopedia defines it as "the entire set of programs, procedures, and routines associated with the operation of a computer system". Software systems have immensely contributed to technological advancements in various industries. This has led to the emergence of software patents that are aimed at protecting computer-related inventions. A software patent may include patenting a code, a user interface, libraries or algorithms. One of the first software patents filed was the "Computer Arranged for the Automatic Solution of Linear Programming Problems". The patent was granted on the 17th of August, 1966. In recent years, India has seen a boom in the export and import of software-related inventions. Accordingly, IP laws have been created to regulate the protection of software-related inventions in India.

Section 2(o) of the Copyright Act, 1957 specifies that computer programs fall under the ambit of literary works. The Act grants protection to an original expression and computer software. However, if the computer program leads to a technical effect, it is considered patentable under the Indian Patent Act, 1970. In sum, it can be said that the mere expression of the methods and programming codes is copyrightable. However, the software's technical effect and operational part are patentable since it does not fall under the ambit of copyright protection. Section 3(k) of the Patent Act, 2002 specifies that a computer program cannot be patented per se. However, computer software is eligible for a patent grant if it is not a business method, mathematical method or algorithm. Additionally, according to section 3(k), it is also essential to show that hardware forms an essential part of the invention and the software.

Time and again, several Courts have adjudicated upon matters concerning software patents which has impacted their status regarding patentability. In Bilski v. Kappos, the applicants were denied a patent by the Patent and Trademark office. The application was filed for a process of managing risk in commodities trading. The PTO examiner rejected the application because the invention was not considered a patentable subject matter under 35 U.S.C Section 101. The U.S Court of Appeals for the Federal Circuit held that the invention was not patentable since it did not satisfy the machine-or-transformation test. The machine-or-transformation test is used to determine the patentability of an invention. According to the test, an invention is patentable if 1) A particular machine implements it in a non-conventional and non-trivial manner or 2) if it transforms from one state to another. However, the Court also added that the machine-or-transformation test could not be considered the sole test for determining the patentability of an invention. Ferid Allani v. Union of India is a landmark judgment that assessed the patentability of software in India. The petitioner, Ferid Allani, had filed a patent application for a method and a device for accessing information sources and services on the web. The Indian Patent Office rejected the application because the invention was a computer program as per section 3(k) and that the device lacks novelty and an inventive step. Upon appeal, the Delhi High Court held that the computer-related invention's patentability status should be re-examined. The Court adjudicated that the patentability of computer-related inventions will be examined based on the presence of "technical effect and/or technical contribution". If the invention demonstrates a technical effect or a contribution, it is patentable despite being a computer program.

Despite tests, conditions and judgements laid down by Courts, the patentability of software is a subject of heated debate. On one hand, it is contended that patenting software would impede research and development. Patenting a software may allow a company to completely monopolize it, thus, disallowing other researchers, scientists and students from developing or working on the patented software. Several organizations and individuals believe that software is a set of programs that can be considered the transcript of an algorithm in programming language. This programming language roots from the transcript of a mathematical language. Since the roots of programming languages can be traced back to mathematics, they cannot be patented.

Several reports have suggested that software patent applications may cover trivial inventions and are apparent to persons who are skilled in the art. Since patent examiners do not fully grasp the technicalities disclosed in patent applications, patents may be granted to inventions that are trivial extensions of existing software.Additionally, it has been contended that patent laws for protecting software are redundant. This paradigm suggests that copyright law is sufficient to protect software since copyright protection subsists on a piece of work without necessarily registering it. Several companies and developers have created open-source software that can be obtained for free to oppose software patents.

On the other hand, patenting of software is supported by many from the tech fraternity. Patenting software may come with several economic benefits. The patent for software can be licensed, which may significantly increase the valuation of small tech start-ups. A patent grants an exclusive right over the invention to the inventor or the assignee for a limited period of time. When a small company or a tech start-up patents their software invention, it could restrict other commercial entities from exploiting the invention and capitalizing out of it. Patenting software would also encourage innovation. Since patenting comes with several monetary benefits, inventors may actively try to develop new types of software. The economic benefits that are obtained from patenting software can be reinvested in further research and development. Software is the backbone of development in several industries. While patenting software can come with several disadvantages, it can be balanced with the help of Intellectual Property systems such as patent pools and compulsory licensing.

Examining Software Patents: Laws And The Debate Surrounding It

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