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Factors to be Seen While Granting of a Software Patent


A software patent is a type of patent or certificate given to a piece of a software of a computer for example computer program, Algorithms and Logarithms. A patent is a set of rights which is usually given to a holder of patent by the state for a period of 20 years. Once a patent is issued to someone, no other country has the right to produce or sell the same type of products unless and until the patent holder agrees for the same. Software Patents are actually for the programs that are attached in a PC or Laptop for the use of the general public. The permissions are generally granted by the holder of the patent in lieu of certain lumpsum that will be charged. The permission for a patent is actually given in the form of a license by the holder. A person can attain patent at a particular country by filing an application. The application varies from country to country. In order to make things easier, the European Patent Office (EPO) has provided a facility of Patent Cooperation Treaty (PCT) in which the owner can file patent application for a lot of countries at once. One of the first software patents was filed in the year 1962 when a Britisher filed a patent application which was named as "A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. This application was accepted and given full permissions in the year 1966. The main purpose of this patent was simple computer program based on Algorithms.

Talking about filing of software patents, there are restrictions which are different based on different countries. Like for example USA does not allows patents on “abstract ideas”, but other countries have fully opposed this idea. The substantive laws on the basis of patentability of software and computer related inventions along with case laws differs based on laws of countries.

In India, the clause for software patents was cancelled by the Indian Parliament in the year 2005. But, on the year 2016, the Office of Controller General of Patents, Designs and Software’s created new guidelines based on examination of new inventions of computers and software’s. in the year 2017, these guidelines were reframed, and some other aspects were added based on software patents. The patents had to be given by ascertaining the nature whether it is technical involving technical aspects or economical based on economic aspects. These factors must be checked properly. After so many changes and amendments, the Government of India on the year 2019 mentioned a valid point that, “In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become nonpatentable inventions – simply for that reason. It is rare to see a product which is not based on a computer program. Whether they are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all have some sort of computer programs in-built in them. Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability.” There was a controversy on the term per se which the Government clarified that this term should be there to ensure that there are genuine inventions regarding computers, and they are not at all refused patents.

Software programs are considered to be one of the most reliable and important part of the entire world because of the fact that their efficiency, effectiveness and also safety interactions are really high and best. Many business companies are getting progressed relying upon the innovations of various software in order to generate growth in the market. Our country has established a marvellous footprint in the field of Information Technology (IT) globally. The Indian Government is on talks to get wider progress on the global software industry by the year 2025 by giving contributions whatever needed and also funds which can create a lot of boost. All these aspects are governed under the National Policy on Software Products, 2019.

How can you Get Software Patents in India?

Yes, it is possible for people in India to get patents for their software inventions. Patents protect your invention from getting copied by someone else. You can attain patent for software’s which are based on mobile applications and certain type of hardware’s. A main problem over here is that Patent Law in India does not provide patent protection to software’s and it is prohibited to patent computer software in India. Section 3 of Patent Act governs this aspect. The patent application process is done as per regulations under Patent Act that clearly specifies all the rules regarding a proper examination of the software’s. as per Indian Copyright Law’s, Computer software can be given protection based on literary works. There are three important tests that a software must pass in order to get patent i.e., Inventive Steps, Novelty and Usefulness. One factor which should always be kept in mind is that a software can only get a patent if it is found attached to a sort of an innovation and also of a fact that the invention is competent enough to be considered. In order to avoid a major claim as per section 3 (k), it is really very important to present that a hardware is the most essential part of the invention process along with software or any other sort of a computer program.

In addition to all such things i.e., patents and copyrights, a registration for trademark can also be done at that instant in order to get the brand name of the software protected. A software may consist of numerous amounts of brand names which are in-built and also all such names can be given a trademark as a mark of safety and protection guard. If a software offers quite unique options which makes it distinctive with respect to other features, then it can be given a trademark which works as a shield in order to prevent other marker competitors from using the same word.

Types of Software Licensing Agreements

There are around 7 different types of Software Agreements which are as under: -

  1. Singe User Software License Agreement

  2. Multiuser Software License Agreement

  3. Local Reseller Software License Agreement

  4. International Reseller Software License Agreement

  5. Enterprise Software License Agreement

  6. Non-profit Software License Agreement

  7. Privacy Policy for Data Protection

Jurisdictions of Software Patenting

There are around 3 sectors of Jurisdictions that come under Software patenting which are as follows: -

Software Patents under TRIP’s Agreement:

This agreement is fully governed under Article 27 of WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights. It is based on a debate relating to a subject of a fact on legal aspects of the patentability of the software’s and whether the inventions in the field of computers and technology should be considered as technology field. As per Article 27, patents should be given on all the inventions based on software’s. The inventors deserve a right and their works should be protected properly as per certain laws.

Software Patents under Europe Patent Convention:

This is governed within European Union Member States along with EPO and other patent offices which are national who have issued a lot of software patents since European Patent Commission came into existence in the late 1970s. Article 52(3) talks about exclusion of programs from computers from any sort of patentability.

Programs and Patent Cooperation Treaty:

The PCT is a type of International Treaty for patents that provides a simplified procedure to file a patent application to protect all the types of innovations. A patent application which is filed under PCT is known as an International Application. Under PCT various sorts of Examinations like preliminary exam along with search are taken place by ISA and IPEA.

Factors to be Kept in Mind While Granting Software Patents

In order to have a proper software patent, there are around 7 Important Factors which must be kept in mind in order to grant a software patent. The factors are mentioned as follows: -

  1. The first factor which must be kept in mind is that the software patent must be unique and should be a new invention. It must look distinct from other software’s.

  2. The second important factor which must be kept in mind is that the systems should only reward those software’s that have passed novelty and utility tests. These tests are compulsory and also avoid disclosing of information to the general public.

  3. The third factor is basically a sub-part of the second factor. It says that the patent information should be simple, clear, complete and must be made accessible to the public at a reasonable time and not in a haste.

  4. The fourth factor mentions that the administrative and judicial functions of the software patent should be timely, and the costs that are attached with it should be affordable and proportionate.

  5. The fifth factor that comes over here talks about the scientific tests based on three sub factors i.e., scope of the patent, availability of license and complexity of the landscape of the patent. The access must be given in a balanced way and it should be done in a technological aspect.

  6. The sixth factor is based on a fact that the share of economy on a national software which are bought and sold internationally can help in being a facilitator of trade before its invention.

  7. The last factor that comes over here is that there has to be a levelled field on the basis of the rules which are there under Intellectual Property Rights. The patent holders should get equal rights like the ones who get under IP.


Electronic Navigation Research Institute Vs Controller General of Patents

In this case, the Patent for the invention “A CHAOS THEROETICAL EXPONENT VALUE CALCULATION SYSTEM” was denied the patent on the grounds that the said invention falls under the category of mathematical formula even if it produces a technical aspect.

Yahoo v Controller of Patents & Rediffcom India Limited

In this case, Section 3(k) of The Indian Patents Act was discussed before Intellectual Property Appellate Board. The contention raised in this case was on the grounds that the said patent was not a proper patent because it was a business method along with technology. Subsequently, the order passed by this board that any kind of technical advances are only a demonstration of a core business method. Therefore, any kind of business method which appears in the disguise of any technical matter without any kind of proper aspect of technical innovation cannot be patented in India. Finally, this board concluded by saying that the technical advances with yahoo proposed was nothing but a method of doing business. Therefore, it cannot be patented.


Thus, we can conclude by saying that patent is necessary in the basis of software’s. Also, countries like India should give patents for computer programs because some people put efforts and, in the end, they never get protection. Instead, their works get copied and the credit is taken by someone else. There must be stricter laws for patent and a correct set of principles from which a software must pass. Also, certain factors should also be kept in mind before passing a patent. There has to be elaborative laws on the basis of protection and safeguarding the rights of the owners. In this current era of digitisation and also progress in technology, there are quite limited options in order to get someone’s hardwork protected against any sort of problems in the field of software and computers. This is the main factor why there are no further inventions and creations made by the creators. Thus, it is really very important that there are more proper and broader laws made and developed so that the creators can get adequate protection and also a shield against fraud. All these things can lead to more innovations and also it will be a matter of pride for our country as a whole.







By Akanksha Chowdhury

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