When the world, including India, was facing immense pressure to align its IPR regime with the WTO’s TRIPS Agreement, the Indian legislature still held ground, among others, by introducing sub-section (k) in Section 3 of The Patents Act 1970 which specifically excluded – ‘a mathematical or business method or a computer programme per se or algorithms;’ from the definition of ‘inventions’ under the Act. The intention was to reject grant of patent for claims that were solely based on a computer programme. This was a crucial step in nurturing a growth environment in India’s, then nascent, software and tech industry.
Software Freedom Law Center, India’s longstanding position has always been — “Say No to Software Patents”. This is aligned with the legislature’s original intent as expressed in the Act.
This is because software patents stifle innovation and growth. Unlike copyright, which vests automatically in the author upon expression, patents are granted to those who win a race to the patent office. In practice, this favours large corporations with the resources to consistently file, fight and enforce patent claims, rather than the emerging developers. As SFLC.in discovered in its research, the bulk of software patents in India have been secured by foreign multinational corporations rather than domestic start‑ups. Furthermore, software patents often cover abstract ideas and are broad in nature, which culminates into a minefield for a developer designing a software, opening him up to frivolous and malicious litigation. Moreover, unlike the pharmaceutical industry, the tech and software sector evolves much faster, and therefore, a 20 year monopoly on a computer programme stifles innovation.
Additionally, the Free and Open Source Software (“FOSS”) community, which has been the backbone of growth in emerging tech markets such as India, is especially vulnerable. Even if source code is released under a FOSS license, a broad patent can still restrict open-source use. Since FOSS development is collaborative and often builds on existing code, more software patents would expose FOSS developers to litigation risks. SFLC.in has long championed the FOSS community and promoted it as a way to reduce dependency on proprietary vendors and protect user privacy.
Despite clear aversion to grant of software patents under the legislation, the practice has drifted in the opposite direction. Through successive Manuals on Patent Practice and Procedure, and the ‘Computer Related Inventions (CRI) Guidelines’, the ‘Department for Promotion of Industry and Internal Trade’ has gradually pushed towards a more permissive approach to software patenting. SFLC.in has consistently pushed back against this by advocating in direct consultations with the DPIIT officials, and raising this issue in multi-stakeholder meets. Pertinently, our advocacy is always grounded in data. In 2023, SFLC.in published an empirical study covering patents granted from 2014 – 2022, in which we reviewed the Patent Office’s journals and identified software patents granted out of the total grants. We then broke down this data to determine how many patents were granted to foreign versus domestic applicants.
Lastly, we continuously explain these issues for citizens through accessible reports, explainers, and blog posts on our website. SFLC.in will continue to work against software patents through rigorous research, public education, policy advocacy, and if necessary, strategic litigation.
