The Indian IT sector, contrary to the general global perception, does not limit itself to providing service. India is gifted with a lot of genius and innovators in the software industry as well. A lot of novel software products are churned out almost on a daily basis. However, Copyright infringement is an issue plaguing this industry, primarily due to there being a lot of ignorance about the Indian Patents Act, 1970. The section 3(K) which lay down the exceptions lets a layperson construe that software patent is possible but might not always be permissible. To quote this section, “mathematical or business method or computer programmes per se or algorithms” are not permitted to be patented.
At first glance, it might seem (since software is nothing but an end result of computer generated programming) that no software can be patented at all! That is, however, not the case. An intelligent drafting lawyer would know that this exception is only for standalone software products. What that basically means is that you cannot patent only the software as a separate entity. But worry not software developers, who have, in fact developed standalone software.
When any software is developed it is developed with providing some sort of result or service to the users concerned. When an application for a patent is being filed, the emphasis should be on the end result of the product rather than the software itself. This means that the patent protection will be provided to the software by its virtue of being the means to the end result of the software, that is, being part of the unique service it provides. For example, Google in India has a patent in the title of “Generating user information for use in targeted advertising”(Patent No. 252220). In simple terms, it just means that Google has the right, as a service providing user software, to collect the information of its users (with their permission, of course) and strategically place ads in their feed so as to promote user based buying of the advertised product. It is not a very new concept, and has existed since the early 2000s. However, by portraying their concept as something new and novel which no other company provided and was an “innovative” software from their company, they obtained a patent from the Indian government solely on the grounds of providing an advertising service as well. The patent protection to their software here was just incidental and secondary, so to say.
Having said that almost any software is patentable in India, it is pertinent to note here that almost all the applications for software patent are initially rejected on the grounds of exception under Section 3(k) of the Indian Patents Act. The point of utmost importance here is to remember that subject matter apart from the software to be patented has to coexist here in confluence with the “computer programme” that was so laboriously created by the software developers in question.
If, however, all a software developer wants is the protection of his/her intellectual rights, the software in question can also be registered as copyright. As per Section 2(O) of the Copyright Act, 1957, computer software and programs can be registered under the ambit of literary work (because coding, duh). Keep in mind that while applying for copyright registration for a software, the source code of the software for which the application has been filed has to be submitted along with the application to the Copyright Office.
Another useful method to protect the software is trademark. A software product may have a certain number of brand names in-built. These names can be registered as sub-products of the said software having various functionalities and functions.
At first glance, it might seem (since software is nothing but an end result of computer generated programming) that no software can be patented at all! That is, however, not the case. An intelligent drafting lawyer would know that this exception is only for standalone software products. What that basically means is that you cannot patent only the software as a separate entity. But worry not software developers, who have, in fact developed standalone software.
When any software is developed it is developed with providing some sort of result or service to the users concerned. When an application for a patent is being filed, the emphasis should be on the end result of the product rather than the software itself. This means that the patent protection will be provided to the software by its virtue of being the means to the end result of the software, that is, being part of the unique service it provides. For example, Google in India has a patent in the title of “Generating user information for use in targeted advertising”(Patent No. 252220). In simple terms, it just means that Google has the right, as a service providing user software, to collect the information of its users (with their permission, of course) and strategically place ads in their feed so as to promote user based buying of the advertised product. It is not a very new concept, and has existed since the early 2000s. However, by portraying their concept as something new and novel which no other company provided and was an “innovative” software from their company, they obtained a patent from the Indian government solely on the grounds of providing an advertising service as well. The patent protection to their software here was just incidental and secondary, so to say.
Having said that almost any software is patentable in India, it is pertinent to note here that almost all the applications for software patent are initially rejected on the grounds of exception under Section 3(k) of the Indian Patents Act. The point of utmost importance here is to remember that subject matter apart from the software to be patented has to coexist here in confluence with the “computer programme” that was so laboriously created by the software developers in question.
If, however, all a software developer wants is the protection of his/her intellectual rights, the software in question can also be registered as copyright. As per Section 2(O) of the Copyright Act, 1957, computer software and programs can be registered under the ambit of literary work (because coding, duh). Keep in mind that while applying for copyright registration for a software, the source code of the software for which the application has been filed has to be submitted along with the application to the Copyright Office.
Another useful method to protect the software is trademark. A software product may have a certain number of brand names in-built. These names can be registered as sub-products of the said software having various functionalities and functions.
This article has been contributed by Himanshu Jain, CEO, LegalRaasta, an online portal for GST Software , GST Return Filing , GST Registration , Section 8 Company Registration , Nidhi Company Registration , IEC Registration , FSSAI License, Income Tax Return Filing.
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