New patent guidelines may spell trouble for Indian software developers

Every city or town, big or small, is seeing a spurt of startups that do path-breaking work in the area of software products, mobile apps and embedded products. However, these firms could soon be threatened by the dark-clouds looming large over the technology horizon of India in the form of software patents.

Section 3(k) of the Patents Act, 1970 excludes mathematical methods, business methods, algorithms and computer programmes per se from patentable subject matter.This provision has been a boon for software firms and coders by ensuring that India is free from the patent battles in the software arena fought in other parts of the world.

This provision has withstood many covert and overt attempts at changing it or diluting it at the behest of the multi national patent holders. Steps were taken to change this law by an amendment in 2005 and to circumvent the exclusion by means of clauses in the draft Manual of Patent Office Practice and Procedure issued in 2008. None of these succeeded, thankfully.

The proposal for amendment did not succeed as the legislature firmly objected to the proposal to extend patentability to computer programs with “technical application to industry” in the Patent Amendments Bill, 2005 for the reason that the amendment will only benefit Multinational Corporations. The Patent Manual, on the other hand, was finalized in 2011 after extensive consultations with stakeholders and the Manual categorically states that patent applications related to mathematical methods, business methods and algorithms, even if it describes technological development are considered to be not patentable. The legislature inspired by the generic pharmaceutical industry story wanted to do the same for software.

The spectre of software patents has now re-emerged, thanks to the “Guidelines for Examination of Computer Related Inventions (CRIs)” issued by the Patent Office on August 21, 2015. The new guidelines, although ostensibly issued with the aim to foster uniformity and consistency in the examination of CRI applications have completely reversed the position in the 2011 Patent Manual and gone against the provisions in Section 3(k) of the Act by allowing for patenting of computer programmes and even mathematical methods. No wonder the likes of Business Software Alliance and USIBC welcomed this change. The 2015 Guidelines state that so long as a computer program is not claimed “in itself”, but is claimed in such a manner as to establish industrial applicability while fulfilling all other patentability criteria, the patent should not be denied. Thus, the expansion of patentability of software based on “technical application to industry” that the legislature prevented in 2005 has now been allowed through the back-door.

The new guidelines, by interpreting Section 3(k) in a manner that allows for granting of patents in the area of software, could result in programmers and startups having to write code in perpetual fear of infringing on some patent or the other. Boundaries of protection claimed by Software patents are often hazy and this results in patents in the area of software being the most litigated.

It is essential to take urgent steps to ensure that these guidelines are recalled so that Indian companies and developers can continue to innovate and write code without fear of being dragged into courtrooms for patent infringement.

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