Patent

Can I Obtain A Patent For A Software-Related Invention?

calendar12 May, 2023
timeReading Time: 4 Minutes
Can I Obtain A Patent For A Software-Related Inventions?

In the era of technological advancement, there is a need to protect software-related inventions so that the same software cannot be replicated or misused. Practically, there is nothing in the system without software. Everything we see or do in our system is due to the software that we use. The patents that are filed for mobile applications, computer programs, and software are basically filed to protect unique features.

Software-related patents may be issued in India for standalone software, embedded software in mobile applications, or software and hardware combinations. However, patent protection for software as a whole is not permitted in Indian law, making it illegal to patent computer programmes. Section 3 of the Indian Patents Act, dealing with non-patentable inventions, lays forth this clause. In contrast, the protection of patent software varies from country to country. Scroll down to check more about Patent for a software-related invention.

What is Patent Software?

When talking about patents there are two types of patents. One is the design patent that protects the aesthetic appeal of any product. In contrast, another is a utility patent that protects an invention and its unique features. Software patent also comes under utility patent, and we cannot legally define the term software patent. Simply put, it protects the computer programs of the application to restrict others from replicating the same.

It is becoming vital to protect such programs because, with advancements in technology, it is becoming quite easy to copy the whole source code of any software or program in just a few seconds. There is only one way to stop such activities, and that is to make such things illegal. The person having a patent for an innovation is the owner of his invention, and he has the sole right to use his invention as he wants. Furthermore, if anyone uses the same program without the permission of the patent owner, then he will be liable for legal actions.

Whether You Can Obtain A Patent For A Software-Related Invention?

The obvious response is that one may apply for a software patent for one’s discoveries if they are used digitally. All the Software-related inventions like software ideas, computer systems, and even mobile phone applications, etc., are all eligible for patent protection.

You Cannot Obtain A Patent for Software-Related Inventions If:

  • The invention is covered under section (3)(m) of the Patents Act, 1970[1], which applies when a set of patent claims for a web-based software are written without identifying the apparatus and structural component that the claimed steps operate on.
  • The patent claims must have structural constraints if they are not to be considered simple processes or mental acts that fall under the purview of section (3)(m) of the Patents Act, 1970. Web software invention is not patentable due to the claims made therein.
  • When the patent claims describe computer instructions and logic rather than any structural elements of the claimed object, the instructions and logic are nothing more than computer programs in and of themselves. Because of this, the subject matter of the claims mentioned above is covered by clause (k) of section (3) of the Patents Act of 1970 (as amended). Web software invention is not patentable as a result of the claims made therein.

Registration of Patent for Software-Related Invention in India

The Patents (Amendment) Act, 2005 governs the patent registration process in India. Getting a patent is a difficult process when it comes to registering an invention. An applicant must seek the advice of an attorney specialised in this field.

Patent filing in India:

  • The idea that you wish to patent must be noted down on the paper along with the concept and expected outcome. Furthermore, details of the invention must be provided with the description, advantages, usage, etc.
  • You must properly explain the need for your invention in the market. It is better to include any images, diagrams, etc.
  • Before submitting the patent application, you must check whether such an innovation is registered and follows the patent requirements.
  • After conducting a patent search, you may decide whether you wish to file a patent application.
  • Once you decide to file the patent, you must draft the patent application.
  •  After fulfilling all the patent requirements, you must submit the application to the office.
  • Furthermore, you are required to submit an examination request. Only after submitting the request the examiner will check your application and submit an examination report to the controller.
  • If the examiner raises any objections, you must submit a response.
  • After all the requirements are fulfilled, and the examiner is satisfied with your application, the controller will grant the patent and mention it in the patent journal.

Software and Patent

Patents provide exclusive rights to the inventor. Therefore, it is important to properly check the patent application before submitting it and ensure that it follows all the requirements of a patent. Here are a few steps to follow if you are an applicant:

  • The first step is to identify an invention for which you may require a software patent.
  • An applicant has to draft an individual application that meets the specific standards of the patent registration of all the countries where you wish to get your patent registered.
  • Next, the particular agencies of those countries will examine your application as per their patent standards. They will grant a patent for your invention if your application meets all the patent granting criteria.

Moreover, the validity of a patent is generally 20 years from the date of filing the application.

Is There A Need To Reframe The Patent Laws In India?

India is a nation that is quickly expanding and is home to several large software businesses. Significant investments are being made in the Indian subcontinent by several powerful and prosperous businesses. These well-known service providers include Apple, Microsoft, Facebook, Google, and a few more.

In order to support the business sector, the Indian government has established initiatives like Start-up India and Digital India. India continues to fall behind because getting inventions linked to software is challenging, which is a significant barrier. This is because India has filed over 13,000 software patent applications. India also boasts a large number of IT-performing businesses and the greatest software talent in the world. Therefore, the Indian parliament must consider offering a wider selection of patent drafting software choices.

Conclusion

In India, copyright laws are responsible for securing computer software. However, there is a range of protection for the software’s literal and figurative components, fair use standards, and authors’ rights under the purview of licence agreements that have yet to be identified and acknowledged by the Indian courts. It may also be argued that such programs may be covered by patent rules, provided they are inventions and software based on algorithms. However, the definition of software’s scope and protection as a trade secret appears like a constrained and limited choice for protecting the Intellectual Property invested in this programme without any suitable regulation.

Read Our Article: Software Patents: Understanding The Legal Framework And Registration Process

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