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Software patents

Technology related patents (which are not in relation to hardware) are usually categorised as software patents or business method patents. For example, a system or process developed by a taxi company which allows any customer to choose a taxi which is closest to his location could qualify as a business method. Or, consider a mechanism developed by Amazon to select the nearest available warehouse to service a customer’s order, which could also be considered as a business method.

In India, it should be noted that both softwares and business methods ‘softwares per se’ cannot be patented. This essentially implies that a pure software program cannot be patented, unless software is combined with hardware to result into a unique device (in which case the invention could be patented if it meets the criteria of novelty, inventive step and industrial application). For this reason, in India, software-related patents have largely been obtained by companies
manufacturing telecom equipment (such as Qualcom, NTT Docomo, etc.) unlike in the US, where companies such as Microsoft, Facebook and Apple have obtained patents on various methods. For example, Facebook has obtained patents on how its supplies

Countries which allow softwares to be patented understand software as a tool to achieve a particular goal. A software patent is not intended to grant monopoly over the software itself, but over the process or function that is ultimately performed. For example, the patent may be granted on a method to manage customer orders, or a unique method to save credit card information of users (which can save time), etc.  The software is merely a tool for the achievement of the end-result. Theoretically, any other tool for implementing the same method will equally be covered by the same patent application, although in reality it is possible that the software may be the only feasible way to achieve the solution under consideration.

It is difficult to predict in advance whether a particular software-related invention will be granted a patent, as the patent standards in different countries for software and business methods can differ significantly.

Test for software patenting in US and UK

The European Union used to follow a similar test as India earlier, which prohibited patenting of software per se, it now uses a different test – any software which results in a ‘technical effect’ going beyond the ordinary interaction between hardware and software is allowed to be patented. This test is wider and permits certain kinds of software to be patented.

Should Indian software companies consider filing patent applications in US?

Under Indian law, permission of the Controller General of Designs, Patents and Trademarks (CGDPTM) must be obtained before filing for a patent in another jurisdiction – this permission is granted in due course, unless the invention relates to the field of atomic energy or the defence sector. Therefore, if a company is of the opinion that it is likely to be granted a patent offshore (say, in the US) but not in India, it could obtain the permission of the Controller and file the application in such country.

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