After Some Dangerous Wavering, Indian Patent Office Gives Definitive 'No' To Software Patents
from the who's-next? dept
As Techdirt has reported over the years, views on whether software should be patentable, and if so, to what extent, have ebbed and flowed. In the US, the Supreme Court's decision in Alice v. CLS Bank seems to have established that most software isn't patentable. In the EU, the fate of software patents is less clear. According to the European Patent Convention, patents are not available for computer programs "as such" -- but that metaphysical "as such" rider has allowed thousands of software patents to be issued anyway. Muddying the waters further is the Unified Patent Court, which may or may not come into existence soon, with almost unchecked powers to reshape the patent landscape in Europe.
In India, by contrast, the situation regarding software patents has just been clarified, and in a rather dramatic manner. An informative press release from India's Software Freedom Law Centre (SFLC.in) explains that last August the Indian Patent Office published some Guidelines for Computer Related Inventions (CRIs), which would have opened the floodgates to software patents. In response:
SFLC.in along with iSPIRT (Indian Software Product Industry Round Table) and Knowledge Commons led a group of civil society organisations, academicians and start-ups in writing a joint letter to the Prime Minister’s Office, the concerned ministries and the Patent Office requesting to recall the Guidelines.
Remarkably, things were put on hold:
The [Controller General of Patents, Designs and Trademarks], after listening to the views expressed by SFLC.in and Knowledge Commons at a meeting held on October 21, 2015, issued an order dated December 14, 2015 keeping the guidelines in abeyance. The Controller then held a public consultation at the patent office in Mumbai on January 19, 2016.
Even more remarkably, the Indian patent office went on to accept a three-part test suggested by SFLC.in to determine the patentability of CRIs, which is as follows:
(1) openly construe the claim and identify the actual contribution;
The key part is the last of these, which specifies that the "computer programme in itself is never patentable." As the SFLC.in press release points out, this welcome decision comes hard on the heels of the strong net neutrality rules issued in India recently. This decisive action in two quite different fields suggests the Indian government is consciously trying to place itself in the hi-tech vanguard, presumably with a view to encouraging domestic start-ups.
(2) If the contribution lies only in mathematical method, business method or algorithm, deny the claim;
(3) 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.. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.