In a relief to startups engaged in innovation, the Controller General of Patents, Designs and Trademarks in India issued orders last Friday rejecting software patents in computer-related inventions (CRIs), in accordance with the provisions of the Patents Act.
The latest orders are a result of the representations made by over 30 experts, academicians, and other like-minded organisations including Software Freedom Law Center (SFLC.in), Indian Software Product Industry Round Table (iSPIRT), and Knowledge Commons expressing fears that the guidelines issued by the Controller General in August 2015 allowing patenting of software would adversely impact startups and companies engaged in innovation.
The experts contended that software was based on mathematics, algorithms, and computer programs and cannot be patented as they are "expressions of abstract ideas". It is estimated that around 200 patents are granted in the country every year.
Since software was already protected under copyright law, there was no need for patenting it again. Section 3(k) of The Patents Act, 1970 says that "A mathematical or a business method or a computer programme per se or algorithms is not patentable".
According to the Center, patents are generally in favour of multinational companies which can drag the companies to court against patent infringement instead of fighting in the marketplaces, while small enterprises, which lack adequate resources, are coerced to toe the line of the big companies and sign licensing agreements.
In a letter to Prime Minister Narendra Modi in September 2015, the experts and civil society organisations said that the August guidelines providing for patenting of software would place the Indian software industry, especially software product companies and startups, at the mercy of multinational corporations and patent holding entities. "These guidelines will make writing code and innovating in the area of software a dangerous proposition due to the chance of infringing on the patents held by big corporations," they said.
In an industry where technology changes fast and competitive advantage is derived by innovating at a fast pace, these government-granted monopolies will only act as speed-breakers in the growth of technology and the industry, the Center felt.
Following the representations, consultations were held with various stakeholders and the August 2015 guidelines were kept in abeyance in December. After a thorough review, fresh guidelines were issued last week.
"There was an error on part of the Controller General's office but they have rectified the same within no time once we brought it to the official's notice," Prasanth Sugathan, counsel at SFLC.in, told ZDNet.
He said that the latest orders ensured that patenting of software on CRIs alone cannot be done.
According to him, the Controller General has accepted the three-part test suggested by the Center to determine the patentability of CRIs: Openly construing the claim and identifying the actual contribution; denying the patent claim if the contribution lay only in mathematical method, business method, or algorithm; and thirdly, check whether the patent is claimed in conjunction with a novel hardware with respect to the invention.
"The guidelines issued in August were against the statutory provisions and could have resulted in a flood of patents being granted in the field of software," he said.
"The revised guidelines are in line with the Indian Patents Act and provide clarity for the examiners. This means that the Indian software industry continues to enjoy the freedom to innovate and is not shackled by irregular patents granted in the area of software," said Mishi Choudhary, technology lawyer and executive director of SFLC India.