Revised guidelines for software patents put on hold

Revised draft guidelines allows the patenting of software on technical advancement, sparking concern from start-ups and software product lobbies like iSpirt and Software Freedom Law Center

Bengaluru: India’s apex patent office has temporarily suspended the revised draft guidelines for examining software patents that it had issued in August, citing concerns submitted by various stakeholders.

Earlier, only software used in combination with hardware could be patented, but the revised draft guidelines allowed the patenting of software which demonstrated technical advancement, and did not clarify what this meant, sparking concern from start-ups and software product lobbies like iSpirt and the Software Freedom Law Center (SFLC), a non-profit foundation that represents many of the world’s leading free software developers.

They said this ambiguity would lead to all software being deemed patentable, as demonstrating some sort of technical advancement is fairly easy to do.

Various organizations had submitted their concerns on the guidelines to the patent office. “We had two meetings with the controller and we did have a patient hearing. But this is not done until the guidelines are completely dismissed in this current form and it is made very clear that there are no software patents in India, and any way to circumvent will not be allowed and clear guidelines are provided to the patent examiner. So, we will keep up the pressure," said Mishi Choudhary, technology lawyer and executive director, SFLC India.

Patents are granted by the patent office according to guidelines that are revised periodically. Section 3(k) of the Patents Act, 1970, holds “A mathematical or business method or a computer programme per se or algorithms are not patentable."

In 2004, an amendment that suggested addition of “enhanced technology" software patents was rejected by both houses of Parliament, as they feared that this would be beneficial only to multinational companies (MNCs). Traditionally, patents have always favoured MNCs that have the financial means to file for and sue against patent infringement, and adversely impact small firms and start-ups.

“Our data says 95% of the patent applications are granted to MNCs and not Indian companies, and even if they are Indian companies they are subsidiaries of foreign companies registered in India. So we wanted to just study and dispel the myth that somehow if we make the IP system stronger we are going to benefit because that’s the rhetoric we keep hearing," said Choudhary.

Even those who are in favour of some software patents, like those associated with hardware implementation, were worried about the ambiguous clause in the August guidelines. “Patent has always been given on three criteria—novelty, inventive step and utility. For software patents these guidelines tried to introduce one more parameter which is technical advancement, which brings ambiguity. Now you can show that you have brought technical advancement even with a compilation software like MS Word, which means you can file a patent for that as well," said Kshitij Malhotra, partner, Global IP India, a patent law firm.

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