INTRODUCTION

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Competitiveness in business or an industry often symbolizes a constant course of development. Competitiveness fosters struggle for existence and boosts development by innovation which ultimately results in survival of the fittest. Software industry is truly exemplary, symbolizing development in technology and nurturing struggle.

We all have witnessed the development of software and hardware in mobile industry since 90’s, which revolutionized the industry and ended up with one of the most used electronic goods, which made mobile phones an integral part of our lives.  Such change was brought about by the intense competition among several major mobile phone players, such as Nokia, Apple, Sony Ericsson and Samsung; hence we can say competitiveness is synonym of development and innovation.

Intellectual Property Rights play a major role in maintaining fair play in this thriving competition. IPRs provide guidelines and define boundaries for structured progression of business and technology. However, “not everything that can be counted counts” is the case with Intellectual Property Rights, as there is no uniformity, parity and clarity across jurisdictions on the way software should be protected.  

SOFTWARE: THE STATUS

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There is no legal or conclusive definition for a software patent. A suggested definition of software patent has been proposed by the Foundation for a Free Information Infrastructure (FFII) as being a “patent on any performance of a computer realized by means of a computer program”. 

Software is a virtual or intangible program, which is installed as system software or application software. System software is a basic requirement for any computer, as it controls all the major functions and integrates all components into a unitary system, such as an operating system. Application software serves more application based purposes, such as creating databases and spreadsheets or processing images such as Microsoft Office.

Software enjoys dual protection under copyright and patent law, but which law prevails other depends on the strategic advantage sought by the applicant. “Copyright law protects the specific code a programmer writes, but it does not protect the idea behind that code and it does not prevent it from being recreated with similar functionality with different code by someone else. Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.”

Patent law prevalently dominates the applicant’s choice over copyright because of its obvious advantages, but the irony is that the patent law does not allow software protection in toto.

The Indian Copyright Law:

The original expression and computer software is granted protection under copyright law unless it leads to a technical effect and is not a computer program per se. Section 2 (o) defines ‘literary work’ and includes computer programs, tables and compilations including computer databases. The language of any computer program is considered to be an expression of the author and hence comes under the Copyright Law.

The Indian Patent Law:

A program containing a method for carrying out a new procedure, or representing a better way of carrying out an existing procedure, would be patentable, unless the effect of the procedure was solely within the computer itself or solely due to the expression of language. On this basis, a program for an improved system of manufacturing a product, or performing a new or improved function on any machine would be patentable, unless the function was only performed in the computer itself.

Generally, Patent Law excludes those programs which do not provide a technical solution to a technical problem. A program which simply embodies a theory, a mathematical method, a method of doing business and an algorithm are excluded, as the matter falls within non-patentability Section 3(k) of Indian Patent Act, 1970.

SOFTWARE PATENT: WORLDWIDE

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Patent laws of several countries allow patent protection for software. Such countries include USA, Japan and Singapore, to name a few. Many countries, including India and Europe, have stringent laws concerning patent protection for software innovation. It is noteworthy that the computer program in itself is not patentable but computer related inventions are patentable. 

 India

In order to obtain a patent in India, an invention must fulfill four criteria:

1. Industrial Applicability: Sec 2.(1)(ac) “capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

2. Inventive Step: Sec 2.(1)(ja) “inventive step” means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

3. Novelty: Sec 2(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art; and

4. Patentability exclusion for software or computer program:  Section 3 (k) a mathematical or business method or a computer programme per se or algorithms.

Patentability exclusion for software or computer program specifically elucidates subject matter which is novel / new product or process, having an inventive step and capable of industrial application does not qualify for patent if it falls under Section 3(k) of the Indian Patent Act, 1970. Nevertheless, not all computers related invention fall under section 3(k) or that computer related inventions which are outside the scope of section 3(k) are patentable in India.

For instance, if the main essence/contribution/function of the proposed invention lies solely in the computer program, the invention is not patentable as per Section 3(k) of the Patent Act, 1970. Conversely, if the main essence/contribution/function of the proposed invention lies in both the computer program as well as hardware, the invention will not fall under section 3(k) and shall be judged on other criteria’s of patentability.