Software Patent Overview

Software Patent

Software Patent Overview


The concept of “intellectual property” in India over the last few years has taken on some epic proportions for a number of reasons. One of the main reasons, due to the increasing awareness among India’s urban population, is the importance and, more importantly, the commercial benefits in protecting its intellectual property rights both inside and outside India.

And under the traditional principles of intellectual property protection, patent law is to promote scientific research, new technology and industrial progress. The basic principle of patent law is that a patent is granted only for an invention i.e. new and useful the invention must have both novelty and utility. The granting of patents thus becomes industrial property and is also called intellectual property. And computer software is a relatively new recipient of patent protection.

The term “Patent” comes from the term “Patent Letter”. This expression ‘Patent Letter’ means an open letter and is an instrument under the Great Seal of the King of England which is addressed by the Crown to all common people whereby the Crown grants certain rights and privileges to one or more individuals in the kingdom. .

At the end of the 19th century new discoveries in the field of art, processes, methods or methods of manufacture, machines and other substances produced by manufacturers increased and inventors became very interested so that the discoveries made by them should not be violated by others. by copying them or by adopting the methods used by them. To save the interests of the inventors, the British rulers at that time enacted the Patents and Designs Act of India, 1911.

With regard to invention patents related to software, it is currently one of the most heated areas of debate. Software has become patentable in recent years in most jurisdictions (albeit with restrictions in certain countries, particularly signatories to the European Patent Convention or EPC) and the number of software patents has increased rapidly.


The term “software” does not have a precise definition and even the software industry fails to provide a specific definition. But it is basically used to describe all kinds of different computer programs. Computer programs are basically divided into “application programs” and “operating system programs”. Application programs are designed to perform specific tasks to be executed through the computer and operating system programs are used to manage the internal functions of the computer to facilitate the use of application programs.

Although the term ‘Software patent’ does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is “a patent on any computer performance that is realized through a computer program”.

According to Richard Stallman, co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents that cover software ideas, ideas that you will use in developing software.

i.e. Software Patent refers to patents that may be granted to products or processes (including methods) that cover or may include software as an essential or least important part of its implementation, i.e. the form in which they are practiced (or used) to produce the desired effect. . they give.

Early examples of software patents:

On September 21, 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The present invention relates to efficient memory management for a simplex algorithm, and can be implemented by pure software. The patent was granted on August 17, 1966 and appears to be one of the first software patents.


Software is traditionally protected under copyright laws because the code fits easily into the description of a literary work. Accordingly, the Software is protected as a literary work under the Berne Convention, and any software written automatically is protected by copyright.

This allows creators to prevent other entities from copying programs and generally does not need to register code to obtain copyright. While Software Patents have recently emerged (if only in the US, Japan, and Europe) where, Patents give their owners the right to prevent others from using the claimed invention, even if it was developed independently and no copying is involved.

Further, it should be noted that patents cover the basic methodologies embodied in certain software. On the other hand, copyright prevents direct copying of software, but does not prevent other authors from writing their own embodiments of the underlying methodology.

The problems involved in granting patents for software, however, are much more complex than taking copyright to them. In particular, there are two challenges one faces when dealing with software patents. The first is about the patent instrument itself and whether the means of protection it provides are suitable for the software industry. The second is the nature of the software, and whether it should be patented.

However, the problems associated with granting patents for software are much more complex than taking copyrights for software. In particular, there are two challenges one faces when dealing with software patents. The first is about the patent instrument itself and whether the means of protection it provides are suitable for the software industry. The second is the nature of the software and whether it should be patented.

a) Different Subjects

Copyright protection covers all original literary works (among them, computer programs), plays, music and art, including films. Under copyright, protection is granted only for certain expressions of the ideas adopted and not the ideas themselves. (For example, a program to add numbers written in two different computer languages ​​would count as two different expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not violate copyright.

Generally a patent is granted for any ‘new’ and ‘useful’ art, process, method or method of manufacturing, machinery, equipment, or other goods or substances produced by a manufacture. Around the world, attitudes towards software patents have been skeptical.

b) Who can claim patent/copyright?

Generally, the creator of a literary, artistic, musical or dramatic work automatically becomes the copyright owner.

A patent, on the other hand, is granted to the first to apply, regardless of who first created it. Patents cost a lot of money. They cost even more to pay a lawyer to write an application than it costs to actually apply. It usually takes several years to consider an application, although the patent office does a very sloppy job of considering it.

c) Rights granted

Copyright law gives owners the exclusive right to reproduce the material, publish copies, display, adapt, and translate the work. However, these rights are limited by publicly available fair use rights. Under “fair use”, the use of certain copyrighted materials will not be infringing, such as use for academic purposes, news reporting, etc. Further, independent reproduction of the copyrighted work will not be considered an infringement.

So if the same code snippet was developed independently by two different companies, there would be no claim against the other.

A patent gives the owner an absolute monopoly which is the right to prevent others from making, using, offering for sale without his consent. In general, patent protection is a much stronger method of protection than copyright because the protection extends to the level of the idea embodied by the software and also commands additional uses of an invention.

This would undermine copyright in software which is the basis of all European software development, because independent creations protected by copyright would be attacked by patents. Many patent applications cover very small and specific algorithms or techniques used in various programs. Often the “invention” mentioned in a patent application has been independently formulated and already in use by other programmers when the application was filed.

d) Protection duration

The TRIPS Agreement mandates a term of at least 20 years for product patents and 15 years for process patents.

For Copyright, the agreement stipulates a minimum period of the creator’s life plus seventy years.


Substantive laws regarding software patents and computer-implemented inventions, and case law interpreting legal provisions, differ under different jurisdictions.

Software patents under multilateral treaties:

o Software patents under the TRIPs Agreement

o Software patents under the European Patent Convention

o Computer program and Patent Cooperation Agreement

Software patents under the TRIPs Agreement

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), in particular Article 27, is the subject of debate about the international legal framework for patenting software, and about whether software and computer-implemented inventions should be considered a field. technology.

According to Art. In the TRIPS Agreement, patents must be available for any inventions, both products and processes, in all areas of technology, as long as they are new, contain inventive steps and are industrially applicable. (…) patents must be available and patents can be enjoyed without discrimination regarding the place of invention, the field of technology and whether the product is imported or locally produced.”

However, there is no dispute resolution procedure regarding software patents yet. Its relevance to patentability in computer-applied business methods, and software information technology remains uncertain, as the TRIPs agreement is subject to interpretation.

Software patents under the European Patent Convention

In the member states of the European Union, the EPO and other national patent offices have issued numerous patents for inventions involving software since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 of the EPC excludes “programs for computers” from patents (Article 52(2)) insofar as the patent application relates to computer programs “as is” (Article 52(3)). It has been interpreted that any invention that makes an obscure “technical contribution” or solves a “technical problem” in an obscure way can be patented even if a computer program is used in the invention.

Computer-implemented inventions that solve only business problems using computers, not technical problems, are considered non-patentable because they do not have an inventive step. However, the fact that an invention is useful in business does not mean it cannot be patented if it also solves a technical problem.

Computer Program and Patent Cooperation Agreement

The Patent Cooperation Treaty (PCT) is an international patent law treaty, which provides a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international application or PCT application. Under PCT, international searches and preliminary examinations are carried out by the International Searching Authorities (ISA) and the International Preliminary Examining Authority (IPEA).


However, before we begin to usher in the new era and equate software patents in India, it’s a good idea to pause and examine the reality of software patents. We can do this by looking at examples of countries where software patents have become the order of the day, such as in the US and Japan.

United States of America

The United States Patent and Trademark Office (USPTO) has not traditionally considered software patentable because by law patents can only be granted to “processes, machines, articles of manufacture, and compositions of matter”. i.e. Specifically, patents cannot be granted for “scientific truths” or “mathematical expressions” of them. The USPTO maintained the position that software was essentially a mathematical algorithm, and therefore could not be patented, until the 1980s.

This position of the USPTO was challenged with the historic 1981 Supreme Court case, Diamond v. Diehr. This case involves a device that uses computer software to ensure the correct timing of heating, or curing, the rubber. Although software is an integral part of the device, it also has other functions related to real-world manipulation. The court then ruled that as a tool for printing rubber, it was a patentable object. The court essentially ruled that while the algorithm itself could not be patented, the devices that used it could.

But in 1982 the US Congress created a new court, the Federal Circuit, to hear patent cases. This court allows software patents, to be treated uniformly throughout the US. Due to several important cases in this court, by the early 1990s software patents were well established.

In addition, Several successful litigation shows that software patents are now enforceable in the US. That’s why, Patent software has spread widely in US. In 2004, approximately 145,000 patents had been issued across 22 patent classes covering computer-applied inventions.


Software can be patented directly in Japan. In various litigations in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita won a court order barring Justsystem from infringing on Matsuhita’s 2,803,236 Japanese patents covering word processing software.

India position

With respect to computer software, in the Patent (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “mathematical methods or business methods or computer programs per se or algorithms “.

However, a recent amendment (Ordinance, 2004), which amended the Patent Act, 1970, was promulgated after receiving approval from the President of India and came into effect from 1 January 2005. Apart from changes in pharmaceuticals and agricultural chemicals, one of the important amendments what this Act seeks to achieve is to allow embedded software patents.

Therefore, the amendments mean that although mathematical or business methods or algorithms cannot be patented, computer programs that have technical applications in any industry or that can be incorporated in hardware may be patentable. Since every commercial software has several industrial applications and all applications can be construed as technical applications, obviously it unlocks all software patents.

After all, any company wishing to apply for a patent for software under the Ordinance must ensure that its invention first, follows three basic tests:

o Inventive Steps

o Novelty

o Uses

Therefore, it is important that the software you want to protect is not just a new or improved version of existing code.

Further, in accordance with the specific requirements of the Ordinance regarding software patentability, the software must have a technical application for industry or be intrinsic or “embedded” in the hardware. This is to prevent future litigation or infringement claims, which may differ even after the patent has been granted.


India for its part appears to have adopted a more conservative approach than European patent norms for software. But the Act definitely has its use and relevance in India today, especially for our growing domestic semi-conductor industry.

This, together with judicial forging can definitely ensure the judicious use of patent protection while enabling the industry to grow through innovation and invention, thereby, reducing the risk of trivial patents hindering the life of real innovations and inventions. This is the reason why patents should always be treated as a “double-edged sword”, to be used with care and sensitivity.

Now whether, in fact, this will be implemented rigidly or will be broadly based through applications (as in the US), and, more importantly, whether the Act will in fact result in increased innovation and invention in industrial software, remains to be seen. . .