The Controller General of Patents, Designs and Trademarks, India has issued an amendment on Feb 19, 2016 to deny grants to software-only patent applications. This is an updated set of guidelines to the original Patents Act (1970) which underwent several minor modifications earlier but not a serious one such as this.
This is a very significant improvement to the existing procedure as it makes a “pure software” patent application without any link to a novel hardware component subject to a confirmed denial. The amendment puts software patent applications in an acid test before granting them.
The move is a result of a joint petition by SFLC (Software Freedom Law Centre), ISPIRT (Indian Software Product Industry Round Table) and Knowledge Commons. A public consultation was also head at the Mumbai Patents Office on Jan 19, 2016.
There’s a lot happening in India around open source and software freedom. Very recently the Indian Govt. has adopted a open source policy. That was followed by a landmark decision to support Net Neutrality which disappointed Facebook Inc., the organization behind Internet.org. The recent decision resembles the EU approach towards software patents.
As per the amendment, patent application would have to undergo the following 3 part test for a grant consideration:
- Openly construe the claim and identify the actual contribution
- If the contribution lies only in mathematical method, business method or algorithm, deny the claim
- 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.