India Patent Office: No patent if invention is merely software
After months of deliberation, India’s Patent Office has issued new guidelines that firmly maintain the country’s practice of not granting patents for software inventions. Issued February 19, 2016, the new Guidelines for Examination of Computer Related Inventions put to rest the country’s recent debate over whether software can be patentable if it has industrial applicability.
India’s patent law does not define or use the term “software,” but it does say that “a mathematical or business method or a computer programme per se or algorithms” are excluded from patentability, as is “a presentation of information.” However, during the past year, the Patent Office began to interpret this exclusion narrowly by stating that software could be patentable if it is applicable to a particular industry.
The new Guidelines reject that notion and direct examiners to apply a three-part test when examining claims for computer-related inventions:
Properly 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.
The Guidelines indicate that a claim must use some type of unique hardware, and that claims directed to “computer programmes,” a “set of instructions/ Routines and/or Sub-routines, “computer programme products,” a “Storage Medium having instructions,” a “Database,” or a “Computer Memory with instruction” should not be considered patentable.
The Guidelines include 15 examples of claims that are not patentable in India. Notably, the Guidelines include no examples in which the claims would considered acceptable.
The new Guidelines have been viewed as a win for Indian software company trade associations who lobbied hard to keep software out of the realm of patentability.