What does Software Patents mean?

Ashish M. Shaji

21 Dec, 2020

Software Patents are a type of patent on a piece of software such as Computer program, algorithm, user interface, and libraries. Software patents offer much superior protection to software developers as compared to copyright law. Under the Patents Act, 1970, an ‘invention’ also includes software as well.

Example-
Apple has used this patent to prevent its Android competitors from copying the aspect of its user interface.

Introduction to Software Patents

A software patent is an exclusive right granted by the State Government to the owner of a particular piece of software. Getting this patent ensures the owner that his software cannot be copied, duplicated, or adapted in any way, by anyone.

Generally, a software patent right is granted for a period of 20 years and it is provided to the applicant in the exchange of disclosure of their inventions.

Cost and Applicability of Software Patents

A software patent charge or cost audit enforcement may be much higher and is subject to the difficulty and the requirements of the patent type. Similar to another category of patents, software patents must be applied according to country or region.

The software itself is not patentable in India. However, Software can be patented if it is a part of an invention that is both innovative and capable of industrial use. This is governed under the Patents {Amendments} Act, 2002, through the new proposed Clause k and contains the word “per se” attached to a computer program. In the ‘Clause k’ the word “per se” was introduced/inserted, which means ‘by itself’ or ‘in itself’ or ‘such as’ or ‘intrinsically’.

The purpose of adding this word was to clarify the meaning of computer programs, because sometimes the computer program may include other things. The major intention of doing this was not to reject them but to grant patent only to inventions that are innovative and industrially useful.   

Why you should get Your Software Patented?

A software patent is able to grant you two advantages:

1. Nobody else, without permission can manufacture, use or sell your software to make money, throughout the time for which the patent is granted.
2. The fact that under the Indian law a patent is granted by Patent Registration for a period of 20 years saves you from the trouble of frequent renewals and further expenditure.

Concerns with a software patent

Some concerns for a software patent are:

• A software patent may include the protection of immaterial ideas that may have commercial value. The legal borders used to define an abstract idea are not well defined and may differ according to region and law.
• Permitting the patenting of software may lead to compact innovation in the technology world, as there might be dependencies and interdependencies for diverse software and discourage the same. Determining these is easy, even for software application developers or designers.
• Patentable and non-patentable software doesn’t have a globally recognized separation.
• There may be legitimate and technical complications related to understanding software innovation and associated technical requirements.

Inclusions and Exclusions for getting Software Patent Registration in India

In India, Patent Registrations are regulated under the Patents {Amendment} Act, effective from 20^th May 2003. In this amendment the following type of inventions was exclusively excluded from Patent Registration;

• Business or mathematical method or a computer program per se or algorithms
• Musical, dramatic, literary, artistic work or any other aesthetic creation including cinematographic works and television production
• Scheme, rule or method of performing mental act or method of playing games, etc.
• Presentation of information, or photograph of integrated circuits, or
• Topography of ICS.

Patents are provided only to Software that is innovative and has some industrial use.

How to Get Software Patented?

Under the Patents Act, 1970^[1], the software isn’t patentable as a fact because of the law while stating what all is not patentable clearly mentions “computer programs per se”.

However, according to the practice that Indian patent office has been following till date, software patents are granted only if the subject matter for which patent is being enquired is not just a software.

It should comprise of some kind of mechanical device or system to which software is combined so that the software can produce a useful or technical result and thus assist in the operation of the device.

In other words, if the subject matter of your patent application is just a computer program, it can’t be patented. But if it is a certain tangible device coupled with software such that in the view of the patent office, it appears to be something more than a ‘computer program per se’, only then a patent will be granted.

Conclusion

You can get your software Patent registered from your respective state government if your software lies under the prescribed criteria defined for getting the patent. As per the Patents {Amendments} Act, 2002 if your software is innovative and it serves any purpose in an industry then your software is eligible for getting it patent registered.

Read our article: What is Patent and why Patent Registration is necessary?