Computer Programs and patentability.

Computers have not only changed the way we live but have also made us dependant on them. It’s impossible to imagine our lives sans computers. But things were not always the same. Life without computers was a reality around 100 years back and computer programs were a part of a theoretical academic subject. Who knew back then that computer programs would someday become the basis for future developments? However, today as we talk about innovations, inventions, patents and intellectual property, one of the most pertinent questions that we may come across would be- Can computer programs be patented? Considering the fact that all modern innovations are somewhere based on programs, we may go ahead and answer this question affirmatively. However, the Patents Act, 1970 of India enlists computer programs under subjects which are not inventions within the meaning of this Act. Section 3k states that ‘a mathematical or business method or a computer program per se or algorithms are non-patentable subject matter. As computer programs are basically set of instructions to be executed by the computer, copyright (given for expression of idea) is regarded as a much more appropriate form of protection as opposed to patents which traditionally is meant for inventions. So, does this mean that software can’t be granted a patent? The answer is no.

As experts say, ‘technical contribution is the touchstone of patentability.’ Across the world, patent applications related to computer programs or software, are gauged on the ‘technical contribution’ or ‘technical effect’ which means that if the invention demonstrates a ‘technical effect’, it is patentable even if it is based on a computer program. For example: US multinational technology company Apple applied for a patent on a 'method for browsing data items with respect to a display screen associated with a computing device and an electronic device' in India in 2009. Objections were raised against the invention that it was merely a software program and thus couldn’t be patented under the provision of section 3(k) of the Patents Act, 1970. In return, Apple responded to this objection clarifying that "although the steps of the method can be performed by means of software, the method constitutes a practical application of this computer software to produce a useful result bringing an improved technical effect while presenting advantages and overcoming drawbacks of hitherto known techniques." Keeping in view the explanation, it was finally granted the patent in 2017 by Kolkata Patent Office.

In the case involving Ferid Allani v/s Union of India & Ors, the Patent office had rejected Allani’s application citing section 3(k) of the Patents Act, 1970 and lack of novelty. With reference to section 3k, the Delhi High Court had remarked that the words ‘per se’ were included to ensure that genuine inventions based on computer programs are not barred for patents and thus directed the Patent Office to re-examine the Petitioner's application in the light of judicial precedents along with established practices of patent offices and the guidelines on computer related inventions.

As further technological advancement takes place, software related inventions will become more and more common. Over the past years, the Patent Office has introduced various guidelines in order to guide the examiners in dealing with applications which involve complex subject matter related to computer programming. However, every time the question of such inventions being granted a patent arises, the term ‘technical contribution’ may create ambiguity. Thus more clarification in this regard would be helpful to deal with cases involving software.

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