How prevalent is Business Method/ Software Patent in India? What do applicants need to prove to obtain patent protection for their business methods/software in India?
There is no specific data available as to the number of applications for business method patents being filed in India, or the number of business methods patents being granted. For an overall number of patents applied for, and granted, visit <http://ipindia.gov.in/main_text1.htm>
Indian practice in relation to the protection of software and business methods is stringent. The Patent Act clearly provides that “a mathematical or business method or a computer program per se or algorithm” is not patentable (Sec 3(K) of the Patents Act 1970 as Amended by the Patents (Amendment) Act, 2002)
Software is thus protected under copyrights and so, business methods used via computers also come under this. This protection is not considered very strong as it only protects the expression of the idea and not the idea itself. Thus, by reverse engineering, a third party can arrive at the same result by changing the expression of the idea.
However, according to Patents (Amendment) Ordinance 2004:
“…a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms.”
Thus, while business methods per se will never be patentable, computer programs operating on specific hardware can be. To be patentable, software must be used in relation to specific hardware and the claim must be for that device with the software component.
The applicant must prove the following:
b. Inventive step
c. Industrial applicability
d. Technical effect of the invention is substantial
e. It results from the combination of the hardware and software components.
The Indian Patent Office released a Draft Manual of Patent Practice and Procedure providing which states that claims to computer programs per se, computer-readable media with programs recorded thereon, methods implemented by software that lack technical effect and methods with a technical effect but lacking hardware support in the specification, are not patentable. The guidelines also state that the method claim should clearly define the steps involved in carrying out the invention. It should have a technical effect. In other words, it should solve a technical problem.
Patents for Computer- Related Inventions in India, A.B. Rajasekaran,Examiner of patents and Designs, Indian Patent office
Business Method and Software Patent Trends in India, Ritushka Negi, Intellectual Asset Management, May/June 2009, 102.
Why Software Patents are Harmful, Lawrence Liang, Anuranjan Sethi and Prashanth Iyengar, Alternative Law Forum.
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