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 ( 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: 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 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 to determine the patentability of CRIs, which is as follows:
(1) openly construe the claim and identify the actual contribution;

(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.
The key part is the last of these, which specifies that the "computer programme in itself is never patentable." As the 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.

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Filed Under: india, patents, software patents

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  1. icon
    DocGerbil100 (profile), 2 Mar 2016 @ 3:55am

    They actually called their group "iSPIRT"? What, were the names "iWANK" and "iSPOOGE" already taken?

    reply to this | link to this | view in thread ]

  2. icon
    MadAsASnake (profile), 2 Mar 2016 @ 4:26am

    Contrast that to the current US approach - where they would rather protect the incumbents.

    reply to this | link to this | view in thread ]

  3. icon
    Ninja (profile), 2 Mar 2016 @ 4:28am


    They outsourced sanity and innovation to Indian workers.

    reply to this | link to this | view in thread ]

  4. icon
    DannyB (profile), 2 Mar 2016 @ 6:09am

    US Legislators !! Wake up!! Do something!!

    Quick! Patent India's idea of not allowing software patents and then sue them for patent infringement! Investor state dispute. Ditto for business method patents! Don't license this patent to anyone in order to prevent any nation from forbidding software patents. And similarly patent the forbidding of a business method patent. Maybe more generally a patent to cover passing legislation that disfavors a business that is or would like to be making money.

    reply to this | link to this | view in thread ]

  5. icon
    DannyB (profile), 2 Mar 2016 @ 6:10am

    Re: Re:

    The US may have outsourced the engineering and innovation talent. But at least we kept the management in the US.

    One day the indian workers will recognize that they don't need US management. (if they haven't already)

    reply to this | link to this | view in thread ]

  6. icon
    AvikSarkar (profile), 2 Mar 2016 @ 6:28am

    Patenting software

    I completely agree with DannyB.. Indians, in no way, need help from US management

    reply to this | link to this | view in thread ]

  7. identicon
    Wendy Cockcroft, 2 Mar 2016 @ 7:31am

    Tell Johnny the Indians are coming

    The wheel turns. Remember when Europe was drowning in a sea of incumbent protectionism that the US and Germany refused to be part of? Result: their fledgling economies took off because they weren't beholden to protectionist rent-seekers.

    By casting off the shackles of innovation protectionist regulations* India has maneuvered itself into an advantageous position. Move over Japan, shift a bit, Taiwan, excuse me China, tell Johnny the Indians are coming.

    *Did you see what I did there? :-P

    reply to this | link to this | view in thread ]

  8. icon
    Wyrm (profile), 2 Mar 2016 @ 9:00am

    Funny, I think this paragraph (3) was what Europe intended with that infamous "computer programs as such". However, not being clear enough turned it into a huge loophole.

    reply to this | link to this | view in thread ]

  9. icon
    DannyB (profile), 2 Mar 2016 @ 9:58am

    Re: Tell Johnny the Indians are coming

    Did you confuse people from India with the western mislabeling people with the word "indian" because someone who 'discovered' land that was already here, was confused about where he was?

    reply to this | link to this | view in thread ]

  10. identicon
    Justin, 2 Mar 2016 @ 2:32pm

    Software patents

    The indian position goes to far. in the US and Australia, software is patented provided that it solves a technological problem. This is a better balance, I think. See for example

    reply to this | link to this | view in thread ]

  11. icon
    John Fenderson (profile), 3 Mar 2016 @ 8:30am

    Re: Software patents

    Oh, you really don't want to follow the US' example with software patents. They do far, far more harm than good here.

    reply to this | link to this | view in thread ]

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