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 Software Patenting Software Patenting is an area of law the legality of which is still is to be established. When The State Street's case was decided, it became obvious that algorithms were patentable as long as their application "produced a useful, concrete, and tangible result”. Numbers of patents have been granted to software inventions in the United States. In the European case of In re Sohei it was decided that computer program which is otherwise patentable will get a patent even if additional features fall within the subject matter excluded under Article 52(2). Important: Article 52(2) states that a mathematical algorithm is not patentable. In Europe technicity requirement compels that software must have a physical effect to get a patent but US does not follow this notion. One can get a patent for a software related invention even if it does not have a physical effect. Indian scenario is following the European system yet Section 3(k) of The Patents Act says ‘computer program per se is not patentable’. Indian parliament brought an ordinance which introduced a new Section 3(ka) to exclude ‘mathematical methods, business methods or algorithms’ from the scope of patentability. This ordinance was intended to bring Indian patents law in compliance with TRIPs and meant to allow software patenting but no amendment has been made in the present Act to bring it in to effect with the condition remaining as ‘Computer program per se’ not being patentable. Software Patent Applications by MNCs
Source: DQ estimates Cyber Media Research During the first quarter of year 2007, Infosys applied for an aggregate of 6 patents in the US and India. By March 31, 2007, Infosys has filed 66 patent applications in India and 15 patent applications in the US. Indian IP: Moving Ahead Software Patent Applications by Indian Companies
Source: DQ estimates Cyber Media Research Now a company like Symantec is into manufacturing application software only. These softwares don’t have a physical effect but they are granted a patent. The scenario is changing here also, like US and Europe and software patents have been granted by the Indian Patent Office. IBM is one of the biggest applicants in India for softwares patent but it explains software as a METHOD and seeks patent protection. More or less it depends on the patent engineer who is drafting the patent application, if he can satisfy the examiner that it is not ‘computer program per se’ a software related invention is granted a patent protection.  |
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