The order excludes business methods, mathematical methods, computer programmes, and algorithms from the domain of patentable subject matter. In mid-2015, the patent office had modified the guidelines that allowed the patenting of software that demonstrated technical advancement. Section 4.5.4 of the guidelines published on August 2015 reads that “If a computer programme is not claimed by ‘in itself’ rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfils all other criterion of patentability, the patent should not be denied.” Subsequently in December, amid concerns raised by stakeholders, it stayed the guidelines. Thus, the status quo on this matter is now maintained. Patents are covered under Section 3(k) of the Patents Act, 1970, which states, “A mathematical or business method or a computer programme per se or algorithms are not patentable.” SFLC.in, a New Delhi-based non-profit, said that it teamed up with Bengaluru-based think tank ISPIRT (Indian Software Product Industry Round Table) and other civil society organisations, academicians and start-ups in writing a joint letter to the Prime Minister’s Office, concerned ministries and the patent office requesting to recall the guidelines. After a consultation and meeting, the Patent office issued an order dated December 14, 2015, keeping the guidelines in abeyance. The 2015 guidelines could have resulted in making it tough for software developers to revolutionize the expansion of scope of software patentability, said Prasanth Sugathan, counsel at SFLC.in, who represented the organisation at the consultations. “The legislature by limiting the scope of patentable subject matter in the field of software wanted our software professionals and industry to innovate and not be stifled by companies holding a stockpile of patents. We are grateful to the Government and the patent office for listening to our feedback and suggestions and preserving the freedom of our coders and entrepreneurs to innovate without shackles,” he said. In other words, the patent office is effectively saying no to all patents that are purely software-based. However, software will continue to be protected by the copyright law, but cannot be patented in India under very specific conditions which have been specified as shown below. According to SFLC, the patent office has accepted its three-part test to determine the patentability of CRIs: (1) Openly construe the claim and identify the actual contribution; (2)If the contribution lies only in mathematical method, business method or algorithm, deny the claim; (3) 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. Such a test will guarantee that applications for patents in the field of software will be rejected and only genuine applications claiming a novel hardware component along with software will be eligible for patent protection. “This government initially with its approach towards Net Neutrality and now with its stand on software patents has shown that it is betting big on the innovation economy and will not let anything hinder the freedom to innovate. We hope to continue to work with the Government and the Patent Office to ensure that innovation is encouraged and to limit the grant of irregular patents,” said Mishi Choudhary, Executive Director, at SFLC.in in an emailed statement. It looks like that Indian Government has done the right thing by stopping software patents in the country going by the reaction and feedback received. This will definitely help and encourage developers, programmers and innovators to try out new inventions, without any fear of being attacked by patent trolls.
