This article is written by Miss Ansari Shaheen, a final year student of University of Mumbai.

INTRODUCTION:

Suppose you have invented a software that going to build multi-millionaire business and this software can solve thousand of problem. Although you have invented a software but you don’t what will be the further step for protecting the software from infringement. For this you have approached your friend who is Patent Attorney. He has given you advice to apply for software patent.

MEANING:

To understand software patent first we need to understand a meaning of patent.

Patent:

A patent is exclusive right given to patentholder for the invention. Once patent is granted to patentholder no person is allowed to use the invention and idea of software. To obtain a patent, patentholder may file for a application to patent holder.

Patent can be filed in the different country and regional offices have different standards for granting patent.

Software Patent:

Software patent is that patent can use for the protection of computer device, software, application, etc. Software patent is acquired by the I.T companies, Tech Professional, Tech Gigs, Innovator, etc. To obtain a patent one must need to focus on the patentability criteria.

DEFINITION:

Section 3(K) of the Indian Patents Act, 1970 lists “mathematical or business method or a computer programme per se or algorithms” under items which are not patentable. Therefore, the majority of the patents for software are rejected by the Patent Office citing Section 3(k) of the Indian Patents Act, 1970.

DIFFERENCE BETWEEN COPYRIGHT AND PATENT:

JURISDICTION:

Filling software patent and computer inventions are different under different jurisdiction.

Software patent are the multilateral treaties:

Software patent are under TRIPs agreements: 

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly Article 27, is occasionally referenced in the political debate on the international legal framework for the patentability of software, and on whether software and computer implemented inventions should be considered as field of technology.

Article 27 paragraph 1 of TRIPS provides for that:

 Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

The only allowable exceptions to this provision are laid down in paragraphs 2 and 3 of the same Article 27, and neither software nor computer programs are mentioned therein

Software patent under European Patent Convention:

The patentability of software, computer programs and computer-implemented inventions under the European Patent Convention (EPC) is the extent to which subject matter in these fields is patentable under the Convention on the Grant of European Patents of October 5, 1973. The subject also includes the question of whether European patents granted by the European Patent Office (EPO) in these fields (sometimes called “software patents”) are regarded as valid by national courts.

Under the EPC, and in particular its article 52, “programs for computers” are not regarded as inventions for the purpose of granting European patents, but this exclusion from patentability only applies to the extent to which a European patent application or European patent relates to a computer program as such. As a result of this partial exclusion, and despite the fact that the EPO subjects patent applications in this field to a much stricter scrutiny^. When compared to their American counterpart, that does not mean that all inventions including some software are de jure not patentable.

Computer Programme and Patent Cooperation Treaty:

There are two provisions in the regulations annexed to the Patent Cooperation Treaty (PCT) that relate to the search and examination of patent applications concerning computer programs. These two provisions are present in the PCT, which does not provide for the grant of patents but provides a unified procedure for filing, searching and examining patent applications, called international applications. The question of patentability is touched when conducting the search and the examination, which is an examination of whether the invention appears to be patentable. 

These two provisions are Rule 39.1 PCT and Rule 67.1 PCT, and, in conjunction respectively with Article 17(2)(a)(i) PCT and Article 34(4)(a)(i) PCT, may have a concrete impact on the procedure under the PCT, in the search and examination performed under the PCT. Indeed, depending on the patent office which is in charge of the search or examination under the PCT, the application filed for an invention relating to a computer program may or may not be searched or examined. In addition, the ISA and IPEA (see background section) that do not search such applications to a certain extent have diverging practices with respect to determinations of exclusions as to computer programs. 

In addition to the consequences these legal provisions may have in practice, Rule 39.1 PCT is also significant from an interpretive perspective to understand the origin of the much-debated Article 52(2) and (3) EPC (see Software Patents under the European Patent Convention (EPC) and Article 52 EPC). The computer program exclusion was indeed inserted in the EPC in line with Rule 39.1 PCT, so that Rule 39.1 predates Art. 52(2) and (3) EPC. 

INDIA:

Patent registration in India is governed under Patent Amendment Act, 2005. Software Patent is difficult to get register as compared to other inventions. Legal Professorial working in the field of software patent would be the most helpful for getting registration of software patenting.

The important aspects for filling a patent in India;

1. The concept, program, usefulness, codes, advantage and invention must be in a written form.
2. Proper explanation of working of invention and it would be the best to describe the diagram, sketches and other necessary things.
3. It would be the better to check patentability criteria and also check whether your invention is enlisted or not.
4. Must conduct the proper research before applying for patent application.
5. After completing the above stuff, patent application needs to be drafted.
6. Publication of patent application.
7. Request for the application, if application is submitted then examiner can examine the submitted application.
8. Respond and clear any objection in regards to the invention.
9. After completing all necessary requirement, innovator can check the patent journal whether patent is granted or not.

Software patent is highly demotivating for innovator even their innovation is well worth. In order, to obtain the patent, make sure that it must be for industrial use.

In order to obtain patent in India, one must visit government portal for checking, forms, terms and condition, fees criteria, jurisdiction, etc. Innovator can check the status of their patent.

U.S.A:

Software and Computer programs are not directly mentioned in the statutory United States Patent Law. Due to emergence of new technologies in the beginning of 20^th century, the United States Supreme Court and United States court of Appeal for the Federal Circuit clarify the difference between patent eligibility and patent ineligibility. The eligibility of software, as such, for patent protection has been only scantily addressed in the courts or in legislation.

CASE LAW:

BAJAJ AUTO LIMITED VS TVS MOTOR COMPANY JT 2009 (12) SC 103.

Fact:

• Plaintiff filed case for permanent and temporary injunction before Madras High Court in 2007 against defendant under section 103 of the Act.
• Further the suit has filed by the defendant under section 106 stating that claim filed by the plaintiff are baseless.

Issue:

• Whether Defendant had actually infringed the patent even though it had in fact made improvements and changes to the patented article. 

Judgement: 

1. The madras HC held that Plaintiff has a patent of on the DTSi technology and has been using it for five years. 
2. The HC used the Doctrine of Equivalence and stated that, “It is also clear as per the decisions, for the purpose of deciding the novel features to constitute “pith and marrow” a purposive construction has to be given in order to make it essential requirement of the invention that any variant would follow outside the monopoly even if it could not have material effect upon the working of invention”

CONCLUSION:

Though the software patent is extremely difficult to get but it is useful for the company to protect the invention of product from the infringement. Software Patentability can be easily granted if one takes the help of Patent Attorney who is specialised in that field. Proper research conduct never fails getting patent. Different country with different jurisdiction having different way for getting patent. 

REFERENCE:

1. https://en.wikipedia.org/wiki/Software_patent

2. https://www.legalserviceindia.com/article/l140-Software-Patenting.html

3. https://blog.ipleaders.in/guide-to-getting-a-software-patent-in-india/

4. https://www.indiafilings.com/learn/how-to-get-patent-for-software/

Aishwarya Says:

Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com

Join our  Whatsapp Group for latest Job Opening