Amendment to computer patent clause will not stifle creativity for vast tribe of IT enthusiasts in India

Computer hardware and software have always bristled with controversies for their patentability. While the USA, Australia and Singapore have been encouraging their patentability by granting liberal patents, Europe in general has been opposed to granting patent to them on the ground that they are based on established mathematical formulas and algorithms that do not call for any inventive steps, crucial to being eligible for enjoying patent rights.

India had put its foot down to grant of patents to computer-related innovations through an express provision—section 3k—in the Patents Act, 2005, which among other things specifically singles out algorithms etc. for denial of patent rights. This affected our own computer whiz kids more than the foreign companies because India is home to a rich annual crop of startups whose forte is computer-related innovations. There was therefore an orchestrated campaign for taking a positive view of computer-related innovations from the powerful and entrenched IT lobby in general and the venture capitalists bankrolling the startups in particular.

The government has at last relented and on 21 September 2015 decided to amend the negativity contained in section 3K by adding the term ‘per se’ to the exclusion clause. It means while computer-related innovations would be viewed with suspicion, the examiners will have to go into the claim of novelty in the formula or algorithm that makes life easier or faster for the computer users. In other words, computer-related patent claims will not be rejected in limine or outright. The US computer major IBM has an envious patent portfolio exceeding 50,000, with Apple closely snapping at its heels. In the past there have been debates on the desirability of granting patents for features like ‘pinch and throw’ on smartphones but the truth is there is an inventive step behind such features without which users may be inconvenienced a lot.

India has done well to shed its inhibitions on this score. Coming as it does in the run-up to the Prime Minister Modi’s visit to the Silicon Valley, California, where he would rub shoulders with some of the leading lights, some of whom are NRIs, in the revolutionary field of computers and information technology, the move would strike right chords both in India and abroad especially the USA.

At the same time, there are also apprehensions if bringing computer-related inventions on par with other inventions say drugs is appropriate. Drugs and other products enjoy a 20 year patent protection. Those in the know wonder if computer- related patents too should enjoy patent protection for 20 long years given the fact that such innovations become obsolete sooner than inventions relating to say drugs. There is considerable validity to this contention.

While ever greening i.e. patent in perpetuity by making marginal and incremental improvements every 20 years is common on the part of drug majors to retain their stranglehold on a product to the detriment of patients needing them, granting patent protection even for 20 years is considered too liberal by the critics as far as computer-related innovations are concerned. One hopes the Modi government would take a look into this aspect so that creativity is not stifled or bottled up for 20 long years when an idea is innately short-lived.

Net-net, the development must be hailed by the vast tribe of IT enthusiasts in this country who have served to put India on the global map. Apps are the flavor of the season for example. With smartphones making computers affordable and intelligible, computer-related innovations will beckon the IT whiz kids increasingly in days to come. They would feel amply rewarded for their efforts now that they can apply for patents and get rewarded through royalties through licenses.

S. Murlidharan