Indian Patent Office Declares New Patent Guidelines for Software and Business Methods

The Indian Patent Office’s recent guidelines has declared that software and business methods are patentable in India, an announcement which has set off a warning across the software product industry.

The patent office for the first time made a clear interpretation of the Patents (Amendment) Act, 2002 which means that if a software is unique and is inventive or tangible, and has proper technical effect or industrial application, it can be patented. The guidelines serve as a reference for officers in granting patented.

Software product industry experts are condemning the modification of the law to make computer programs easily patentable, with an argument that innovation in the area is often incremental and programs are built on top of other programs.

Further, they have warned that if the guidelines are made legal, programmers will be restricted from employing a particular method to solve a problem without the permission of the idea’s patent holder. They opine that the new guidelines will be beneficial for established companies to file for patents, but it will translate into critical problems for startups where innovation serves as the foundation of their sustenance, reports ET.

“We want Indian entrepreneurs to be focused on innovation and not litigation,” maintained Venkatesh Hariharan, member of software product think-tank iSPIRT’s software patents expert team. He added, “We fear that these guidelines will open the floodgates for software patenting and the resultant litigation because software patents are the most contentious and litigated sector of patents in jurisdictions that allow it.”

Globally, the patent war for software is much more complex than what is happening in the country.

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Most countries place some limits on the patenting of inventions involving software, but there is no one legal definition of a software patent. For example, U.S. patent law excludes “abstract ideas”, and this has been used to refuse some patents involving software. In Europe, computer programs are excluded from patentability, thus European Patent Office policy is consequently that a program for a computer is not patentable if it does not have the potential to cause a further technical effect beyond the inherent technical interactions between hardware and software.

The crux of the debate is based on the question of where the boundary between patentable and non patentable software must lie, and that whether patents actually act as a propeller of innovation or as a deterrent in the pursuit of novelty?

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