Patents for Computer Programmes - are they permitted in India?

Most of us have become aware of ‘patents’ as we keep reading in the newspapers almost every alternate day, judgments on patent cases passed by the Courts -particularly on ‘medicinal products ‘ (drugs).In fact ,some of us may be knowing that many of the anti Cancer drugs have now become really affordable in India –thanks to these judgments favouring cancer patients in India.

But many of us are ignorant of the “software or computer related patents’ in India; may be because we think computer programmes are not “life saving” and the press is least interested in technical or legal aspects of computer programmes/software patents or the related law .There is less sensationalism.

But let me tell you , we have to sincerely thank our law makers and the governments (which we seldom do!) for having a vision and a commitment to safe guard the interest of the Indian citizens by providing enough safety provisions (can we say loopholes !) in the Indian patent Act. (The Patents act,1970).By adding section 3(d) we could filter out flimsy patents on drug molecules and by adding “per se’ to section 3(k) we could block undeserving and harmful ‘computer programme/soft ware patents-which could have stifled our IT industry.

On a serious note I can tell you that this is a classical example wherein the law has come to the rescue of two of our core industries –Pharma & IT and helped our economy in general. We can boast of making a big impact on the world scenario in both these areas-Pharmaceutical generics and IT.

What is a computer programme?
The patent act in India deals with “computer programme,” but does not define it. But our Copyright Act, defines a computer program as "a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result". Computer programme/Software patents are one of the most contentious issues in Intellectual Property Rights. Inherent abstract nature and growing economic significance of computers and computer programs have given Computer programme/software patents a controversial status. The position on software patents in India is equally confusing.

Under the Indian Patent Act a 'Computer programme per se’ is not considered an ‘invention’ and hence is not patentable. (section3;what are not inventions).. “Invention” is defined under the act as “a new product, or process involving an inventive step and capable of industrial application”. But this phrase “computer programme per se” has created a controversy. How does “a computer programme’ differ from “computer programme per se “? Does it mean that any Computer programme by itself cannot be patented?.Then what do we do to make a mere (however new ) computer programme patentable? There seems to be no clear cut answer.

Let us see what the patent authorities have in mind regarding computer programmes.

According to Manual of Patent office practice and procedure, 2011( a practical guide for prosecution(processing ) of patent applications in India )  .If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed to ‘computer programme products’ are computer programmes per se -stored in a computer readable medium and as such are not allowable

In the earlier DRAFT MANUAL OF PATENT PRACTICE AND PROCEDURE: THE PATENT OFFICE, INDIA, 2008, a detailed explanation was attempted.

According to this manual computer programmes are understood as a set of instructions for controlling a sequence of operations of a data processing system. The claims(invention ) relating to software programme product are nothing but computer programme per se simply expressed on a computer readable storage medium and as such are not patentable. For example, if the new feature comprises a set of instructions (programme) designed to control a known computer to cause it to perform desired operations, without special adoption or modification of its hardware or organization is not patentable …….A program to evaluate the value of PI or to find the square root of a number are held not allowable.
An invention consisting of hardware along with software or computer program in order to perform the function of the hardware may be considered patentable. e.g., embedded system

The “software per se” is differentiated from the software having its technical application in the industry. A claim directed to a technical process which process is carried out under the control of a programme (whether by means of hardware or software), cannot be regarded as relating to a computer programme per se. For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable. Here the signals are collected from a definite recited structure and hence allowable”.

But despite these explanations given by the patent office, there was no uniform policy or procedure for examining computer programme related inventions. Skilled drafting of computer programme related claims by the intelligent patent attorneys has added to the difficulty.

Recently the Patent office came out with what is known as “Guidelines for Examination of Computer Related Inventions (CRIs) (2013;47 pages.). This document intends to achieve uniformity of practice while dealing with patent applications concerning CRIs. It is hoped that the 17 illustrative examples and the flow chart for examination of these categories of inventions will prove to be effective tools towards achieving the objectives

In a recent legal case about softwares patents (Alice Corp. v. CLS Bank International) in United States (considered to be country which encourages computer related patents) the issue was whether certain claims about a computer-implemented, electronic escrow* service for facilitating financial transactions is patent eligible. The decision of the court invalidated patents held by Australia-based Alice Corp. that had claimed a computerized invention for limiting risk in currency transactions. The patents were held to be invalid because the claims were drawn to an abstract idea, and that implementing those claims on a computer was not enough to transform that idea to a patentable invention. This judgment confirmed that merely adding “a generic computer to perform generic computer functions” does not make an otherwise abstract idea patentable; an abstract idea along with a computer doing what a computer normally does is not something the patent system was designed to protect

(* a contractual arrangement in which a third party receives and disburses money or documents for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transacting parties)

I am sure the guidelines enumerated above along with a cited case on soft ware patent (may not exactly what we have been discussing) from United States have shed at least some light on the patentabilty of computer programmes” . But the clear cut answer to the meaning of the word “computer programme per se’ as mentioned in our Act, and its implications can come -only from the judgments of the Indian Courts. It has happened in case of Phramaceutical patents (remember, Novartis Case?)Let us wait and see.

I am sure you would agree with me that whatever may be the confusion the word “per se’ in the section of the Act has caused –it has certainly served one good purpose i.e. nurturing and preserving our IT industry. It is appropriate to conclude with a quote from Ching-Chow:

“Nothing in itself is good or evil, except in the way it is used”.

Dr. Ravindra Shetty (August 2014)