Patenting computer-related inventions in India

Thanks to government initiatives such as the Digital India and Make in India campaigns, entrepreneurship, manufacturing and investment are new buzzwords in the Indian business vocabulary. While these campaigns are designed to create a welcoming environment for foreign conglomerates seeking to manufacture and invest in India, foreign players remain concerned about IP rights protection in the country. One issue on which questions continue to be asked is the patenting of computer-related inventions.

The Office of the Controller General of Patents, Designs and Trademarks’ Computer-Related Inventions Guidelines 2016 define ‘computer-related inventions’ as those that involve the use of computers, computer networks or other programmable apparatus, including inventions with one or more features that are realised wholly or partially by means of a computer programme. In recent years the office has issued multiple sets of guidelines interpreting the scope of computer-related inventions and their protection. This chapter analyses the manner in which this protection has evolved, as well as the present status of computer-related inventions in India.

Early days of computer-related inventions: 1999 to 2013

The first reference to computer-related inventions in Indian patent law came with the tabling of the Patent (Second Amendment) Bill in Parliament in 1999. This bill was subsequently referred to a joint parliamentary committee, constituted on December 22 1999. Section 3 of the Patent Act comprises a list of creations that are not regarded as inventions and are hence unpatentable. The committee recommended a modification in

Section 3(k) of the bill to insert “per se” into the phrase “a mathematical or business method or a computer programme or algorithm”. Hence, under Section 3(k), “a mathematical or business method or a computer programme per se or algorithm” would be unpatentable.

The committee clarified that the phrase was being inserted to ensure the patentability of inventions relating to computer programs that may include other things “ancillary thereto” or “developed thereon”. The committee further clarified that the intention of its recommendation was not to reject the patentability of computer-related inventions as such, but to distinguish them from the underlying computer programs – that is, not to deny the grant of patents for software inventions, but to identify and deny patent applications for computer programs only. The committee’s recommendations became law with the Patents (Amendment) Act 2002.

In 2004 the government attempted to pass the Patents (Amendment) Ordinance 2004 in order to clarify the scope of software patenting. The ordinance was intended to amend Section 3(k) to read “a computer programme per se other than its technical application to industry or a combination with hardware”, thus allowing the patenting of computer programs with industrial application that were used in combination with hardware. However, strong parliamentary opposition led to the ordinance being abandoned.

The next major development regarding computer-related inventions took place in 2013, when the Office of the Controller General of Patents, Designs and Trademarks issued draft guidelines for examining computer-related inventions and invited suggestions from industry

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