India's patent office says no to software patents, but copyrights still valid

The Controller General of Patents, Designs and Trademarks has issued an order dated 19 February publishing the revised Guidelines for Computer Related Inventions (CRI). The current guidelines are in line with the provisions of the Patents Act, 1970. The guidelines published by the patent office on 21 August last year, was widely regarded as limiting developers. According to a statement by the Software Freedom Law Centre and “could have resulted in a flood of patents being granted in the field of software.” Various organisations, including SFLC.in, ISPIRIT (Indian Software Product Industry Round Table), among others, petitioned the Prime Minister’s Office and Patent Office, requesting a recall of the guidelines. After a consultation and meeting, the Patent office issued an order dated 14 December, 2015, keeping the guidelines in abeyance. Prasanth Sugathan, counsel at SFLC.in, who represented the organisation at the consultations said: “The legislature by limiting the scope of patentable subject matter in the field of software wanted our software professionals and industry to innovate and not be stifled by companies holding a stockpile of patents. We are grateful to the Government and the patent office for listening to our feedback and suggestions and preserving the freedom of our coders and entrepreneurs to innovate without shackles.” In other words, the patent office is effectively saying no to all patents that are purely software-based. However, software will continue to be protected by the copyright law, but can’t be patented in India under very specific conditions which have been specified as shown below. According to SFLC, the patent office has accepted its three-part test to determine the patentability of CRIs: 1. Openly construe the claim and identify the actual contribution; 2. If the contribution lies only in mathematical method, business method or algorithm, deny the claim; 3. If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability. Such a test will ensure that applications for patents in the field of software will be rejected and only genuine applications claiming a novel hardware component along with software will be eligible for patent protection.