Software patents are like zombies in the zombie film genre that Hollywood has made popular. They just refuse to die. As many time you kill them, they revive again and keep coming back. In India, we thought we had killed and buried software patents with the Amended Patent Act in 2005, and again in the Patents Manual, 2011, both of which effectively deny software patents. The recent Guidelines on Computer Related Invention (CRI) issued by the Indian Patents Office last month, has brought them back again, with an interpretation that not only violates the Act, but also the English language.
The genesis of the recurring battle in India over software patents are the exceptions under the Patents Act – Clause 3(k) – which states that a patent cannot be granted for “a mathematical or business method or a computer programme per se or algorithms.” The Joint Parliamentary Committee (JPC), which had added the words per se in the above, had made clear that it referred to only those inventions, which had software combined with other things. The combination could be patented, if it satisfied other criteria of patentability – innovation, industrial applicability, etc. According to JPC, the innovation had to reside either in the combination as a whole or outside of the software to be patentable.
The CRI Guidelines seek to subvert three of the four items that have been held to be not patentable in 3(k) of the Patents Act. One is software per se, the second is a mathematical method, the third is a business method.
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