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An Overview of Software Patenting An Overview of Software


The concept of “intellectual assets” in India over a previous couple of years has taken on some epic proportions for some reasons. As a consequence of the growing attention among the urban Indian populace, one of the primary motives is the importance and, extra importantly, the commercial advantages in shielding its intellectual belongings rights both inside and out of doors India. Under the conventional principles of intellectual belongings safety, patent law encourages medical studies, new era, and business development. The essential precept of patent law is that the patent is granted most effective for an invention i.E. New and beneficial, the stated invention must have novelty and application. The supply of patents hence turns into commercial property and is also called highbrow belongings. And the laptop software is a rather new recipient of patent safety.

The term “Patent” has its beginning from the time period “Letter Patent”. This expression ‘Letter Patent’ intended open letter and have been instruments below the Great Seal of King of England addressed by using the Crown to all of the subjects at huge. The Crown conferred certain rights and privileges on one or extra individuals inside the country. It becomes the later part of the 19th century. New inventions inside the discipline of art, process, technique, or manner of manufacture, equipment, and other substances produced by producers have been elevated. The inventors have become very tons interested that the inventions finished through them have not to be infringed using any individual else with the aid of copying them or adopting the techniques they use. To save the interests of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.

 softwareWith admiring the patentability of software-associated innovations, it’s far presently one of the maximum heated areas of dialogue. The software has ended up patentable in the latest years in maximum jurisdictions (even though with restrictions in certain nations, appreciably the ones signatories of the European Patent Convention or EPC), and the variety of software patents has risen rapidly.


The time period “software” does not have a precise definition, or even the software program industries fail to give a unique definition. But it is essentially used to describe all of the special kinds of laptop packages. Computer programs are essentially divided into “utility packages” and “running machine packages.” Application packages are designed to do specific duties to be performed thru the pc. The running system applications are used to manage the internal functions of the pc to facilitate the use of the utility application.

Though the term ‘Software patent’ does no longer has a universally universal definition. One definition cautioned using the Foundation for a Free Information Infrastructure is that a software program patent is a “patent on any performance of a PC realized with the aid of a computer program”. According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents which cover software program ideas, ideas which you would use in developing a software program. Software patents discuss with patents that might be granted on merchandise or processes (along with techniques), which include or might also consist of software as a massive or at the least essential part of their implementation, i.E. The shape in which they’ve installed exercises (or used) to produce the effect they intend to provide.


An early example of a software patent:

On twenty-first Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” became filed. The invention changed into involved with green memory management for the simplex set of rules and can be carried out by basically software approach. On August 17, 1966, the patent turned into granted and appears to be one of the first software program patents.


The software has traditionally been covered below copyright law because code fits pretty effortlessly into the outline of a literary work. Thus, Software is covered as works of literature underneath the Berne Convention, and any software program is written automatically included by way of copyright. This allows the writer to save you every other entity from copying the program, and there may usually be no want to sign in code for it to be copyrighted. While Software Patenting has currently emerged (if handiest in the US, Japan, and Europe), Patents provide their proprietors the right to prevent others from using a claimed invention, even if it became independently evolved and there has been no copying concerned.

Further, it must be noted that patents cover the underlying methodologies embodied in a given piece of software. On the opposite copyright prevents the direct copying of software but does not save different authors from writing their personal embodiments of the underlying methodologies. The issues involved in conferring patent rights to software programs are plenty extra complicated than removing copyrights on them. Specifically, there are demanding situations that one encounters while dealing with software program patents. The first is ready the tool of the patent itself and whether or not the manner of protection it confers is suited to the software program industry. The second is the character of the software program and whether or not it ought to be a concern to patenting.

However, issues concerned with conferring patent rights to the software are more complicated than removing copyrights. Specifically, there are two challenges that one encounters when dealing with software program patents. The first is to set the device of the patent itself and whether or not the way of protection it confers is suited to the software program enterprise. The second is the nature of software programs and whether or not they should be subject to patenting.

A) Different Subject Matters

Copyright safety extends to all original literary works (among them, pc applications), dramatic, musical, and artistic works, together with films. Under copyright, safety is given most effective to the precise expression of a concept that becomes adopted and no longer the idea itself. (For instance, a application to feature numbers written in two kind pc languages would matter as  unique expressions of one idea) Effectively, unbiased rendering of a copyrighted work with the aid of a 3rd birthday celebration could not infringe the copyright.
Generally, patents are conferred on any ‘new’ and ‘beneficial’ artwork, manner, method or way of manufacture, machines, home equipment, or other articles or materials produced with the aid of manufacture. Worldwide, the attitude in the direction of patentability of software has been skeptical.

B) Who can also claim the proper patent /copyright?

Generally, the writer of a literary, artistic, musical, or dramatic work mechanically becomes the copyright owner. The patent, then again, is granted to the first to use for it, regardless of who the first to invent it became. Patents value a whole lot of money. They cost even greater paying the lawyers to jot down the application than they value to, without a doubt, apply. It typically takes some years for the software to get considered, even though patent offices do an extremely sloppy job of considering.

C) Rights conferred

Copyright regulation offers the owner the specific right to breed the cloth, difficulty copies, perform, adapt and translate the paintings. However, these rights are tempered by way of the rights of fair use available to the general public. Under “honest use,” positive makes use of copyright cloth would now not be infringing, along with use for academic purposes, information reporting, and so on. Further, the impartial pastime of a copyrighted work could no longer represent infringement. Thus if the equal piece of code were independently advanced using two different corporations, neither might claim opposition to the opposite. A patent confers on the proprietor an absolute monopoly that is the right to save you others from making, the use of, presenting on the market without his/her consent.

In general, patent safety is a much stronger approach to protection than copyright because the safety extends to the extent of the concept embodied with the aid of software and injuncts ancillary uses of an invention. It could weaken copyright in software programs. This is the bottom of all European software program improvement because impartial creations included by copyright could be attackable via patents. Many patent applications cover minimal and precise algorithms or strategies that can be used in a extensive sort of applications. Frequently the “innovations” mentioned in a patent application had been independently formulated and are already in use with the aid of different programmers when the software is filed.

D) Duration of safety

The TRIPS agreement mandates a period of at least twenty years for a product patent and 15 years in the case of a procedure patent. For Copyright, the settlement prescribes a minimal period of the lifetime of the author plus seventy years.


Substantive regulation concerning the patentability of the software program and laptop-implemented inventions and case regulation decoding the prison provisions are distinct beneath one-of-a-kind jurisdictions.

Software patents below multilateral treaties:

  • o Software patents below TRIPs Agreement
  • o Software patents below the European Patent Convention
  • o Computer applications and the Patent Cooperation Treaty

Software patenting below TRIPs Agreement

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), especially Article 27, is a problem to discuss on the worldwide criminal framework for the patentability of software program and on whether software program and computer-carried out innovations ought to be taken into consideration as a discipline of technology. According to Art. 27 of TRIPS Agreement, patents shall be available for any innovations, whether or not merchandise or tactics, in all fields of technology, furnished that they may be new, contain a resourceful step, and can the industrial utility. patents will be available and patent rights fun without discrimination as to the location of invention, the field of the era and whether products are imported or locally produced.”

However, there were no dispute agreement processes regarding software patents. Its relevance for patentability inside the laptop-applied business strategies and software program facts era stays uncertain since the TRIPs agreement is subject to interpretation—software patents under the European Patent Convention. Within European Union member states, the EPO and other country-wide patent places of work have issued many patents for inventions regarding software because the European Patent Convention (EPC) came into force in the overdue Seventies. Article 52 EPC excludes “programs for computers” from patentability (Art. Fifty-two (2)) to the extent that a patent application relates to a PC program “as such” (Art. Fifty-two (3)). This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical trouble” in a non-obvious way is patentable. However, a laptop application is used within the invention.

Computer-carried out inventions which handiest clear up commercial enterprise trouble using a PC, in place of technical trouble, are considered unpatentable as lacking a creative step. Nevertheless, the reality that an invention is beneficial in business no longer suggests it isn’t patentable if it also solves a technical problem—computer programs and the Patent Cooperation Treaty. The Patent Cooperation Treaty (PCT) is a global patent law treaty, which provides a unified technique for filing patent applications to shield inventions. A patent software filed under the PCT is called global software or PCT software. Under the PCT, the global search and the initial examination are conducted using International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).


However, before we start hailing the advent of a brand new technology and equating the patenting of software in India, it might be properly well worth our even to take a pause and look at the realities of software patenting. We should do that to search for examples of countries wherein software patenting has already become the order of the day, which include the US and Japan.

United States

software patentingThe United States Patent and Trademark Office (USPTO) has historically no longer considered software programs to be patentable due to the fact by statute, patents can best be granted to “processes, machines, articles of manufacture, and compositions of matter.” I.E., In particular, patents cannot be granted to “clinical truths” or “mathematical expressions” of them. The USPTO maintained the placement that software turned into, in effect a mathematical algorithm, and therefore no longer patentable, into the 1980s. This function of the USPTO becomes challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case concerned a device that used a pc software program to ensure precise timing whilst heating or curing rubber. Although the software program was the essential part of the device, it also had different capabilities associated with real-world manipulation. The court docket then dominated that as a device to mold rubber; it was a patentable object. The court essentially ruled that even as algorithms themselves couldn’t be patented, devices that applied them may want to.

But in 1982, the U.S. Congress created a new courtroom i.E the Federal Circuit, to hear patent instances. This courtroom allowed patentability of the software program to be handled uniformly all through the United States. Due to 3 landmark instances in this court docket, with the aid of the early 1990s, the patentability of software became nicely set up.
Moreover, Several hit litigations display that software program patents are now enforceable in the US. That is the purpose, Patenting software program has turned out to be substantial within the US. As of 2004, about a hundred forty-five 000 patents had issued inside the 22 classes of patents masking pc implemented inventions.


The software is, without delay, patentable in Japan. In diverse litigations in Japan, software program patents were efficaciously enforced. In 2005, for instance, Matsushita received a court docket order barring Justsystem from infringing Matsushita’s Japanese Patent 2,803,236 protecting phrase processing software program.

Indian Position

With appreciate to computer software, in the Patents (Amendment) Act, 2002, the scope of the non-patentable problem count number inside the Act was amended to consist of the following: “a mathematical method or a commercial enterprise technique or a laptop program per se or algorithms.”

Irving Frazier
Irving Frazier
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