No patents for standalone software

Mere computer programmes — those not in conjunction with a novel hardware — will not be granted patent in India, according to the latest guidelines of the Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM). The Office of CGPDTM supervises the working of Intellectual Property Rights (IPR) laws in India.In the guidelines released on February 19, the CGPDTM agreed with a Parliamentary panel which had observed that computer programmes as such are not intended to be granted patent.The fresh guidelines issued by the CGPDTM follows its stay on its August 2015 guidelines which had given rise to some confusion in this regard owing to certain "ambiguities" regarding whether Computer Related Inventions (CRIs) are patentable. The new guidelines have been aligned to the Patents Act. The objective of the guidelines is to bring out clarity in terms of exclusions expected under sub-section 3(k) of the Patents Act so that eligible applications of patents relating to CRIs can be examined speedily, the CGPDTM said. The sub-section 3(k) says mathematical methods or business methods or computer programme per se or algorithms are not patentable. The CGPDTM asked the patent examiners to rely on a three stage test in examining CRI patent applications. "Properly construe the claim and identify the actual contribution; If the contribution lies only in mathematical method, business method or algorithm, deny the claim," it said.“The computer programme in itself is never patentable... If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention,” it added.

Prasanth Sugathan, counsel, at the Software Freedom Law Center (SFLC), a non-profit organisation, told The Hindu “The implication of these guidelines is that start-ups and software developers will continue to have the freedom to innovate without worrying about litigation in this area and infringement notices. Ambiguous guidelines, like those published in August last year, would have resulted in a patent minefield like in the U.S."