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No Software Patent Without Novel Hardware Component- Indian Patents Office

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In a much-needed respite to software based business and startups, Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM), has issued revised guidelines regarding the patents of Computer-Related Inventions(CRI).

As per the new guidelines, the patents office has asked the examiners to grant software patent only if accompanied by novel hardware.

The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.

said CGPDTM in its guidelines to examiners.

The announcement was preceded by the new guidelines which was revealed in August last year. They mentioned about granting patents to softwares that demonstrated “technical advancement” but remained ambiguous about the exact meaning.

If a computer programme is not claimed by ‘in itself’ rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfils all other criterion of patentability, the patent should not be denied.

read the section 4.5.4 of the guidelines published in August 2015.

This was followed by SFLC (Software Freedom Law Center) and ISPIRT (Indian Software Product Industry Round Table) writing a joint letter to the PMO, concerned ministries and the patent office requesting to recall the guidelines.

They claimed that these guidelines would make it difficult for software developers to innovate and could adversely affect the small firms, startups, and the overall startup ecosystem. After these concerns, the guidelines were stayed in December until the new announcement made by CGPDTM.

SFLC has welcomed the new February guidelines saying that they are in line with the Indian Patents Act and provide clarity to examiners.

Prasanth Sugathan, counsel at SFLC, who represented the organisation at the consultations said,

We are grateful to the Government and the patent office for listening to our feedback and suggestions and preserving the freedom of our coders and entrepreneurs to innovate without shackles. The implication of these guidelines is that start-ups and software developers will continue to have the freedom to innovate without worrying about litigation in this area and infringement notices.

Mishi Choudhary, Executive Director, at SFLC said that this approach of goverment, first towards Net Neutrality and now software patents, showed that they are “betting big on the innovation economy and will not let anything hinder the freedom to innovate.”

However, there is another section of people who did not approve of the guidelines. These include the big software MNCs, who have been lobbying hard for allowing software patenting in India.

They claim that the software patents are necessary in order to prevent clone companies and to give incentives to original software makers for trying out new things.

Looking disappointed with the new guidelines and giving us his viewpoints, Yolynd Lobo, Director (India), BSA, The Software Alliance says,

We are concerned that the revised guidelines for patents relating to Computer Related Inventions (CRI’s) will prevent innovative software companies in India from being able to effectively protect their significant investments in new software-enabled products and services.

The patents  framework in India needs to nurture India’s vibrant software industry by ensuring there are legal protections available to encourage a culture of investment in innovation.

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