Patent Protection For Software In India



Patentability of the software- related inventions are very controversial in these days. In early 1960s and 1970s uniform response was that software was not patentable subject matter. But in subsequent years United States and Japan expanded the scope of patent protection. But several countries including Europe and India are reluctant to grant patents for computer program for the fear that technological progress in this volatile industry will be impeded. Proponents for the software patenting argue that patent protection will encourage, and would have encouraged, more innovation in the software industry. Opponents maintain that software patenting will stifle innovation, because the characteristics of software are basically different from those of the innovations of old Industrial, e.g. mechanical and civil engineering.


WIPO defined the term computer program as: “A set of instructions capable, when incorporated in a machine readable medium, of causing a machine having information processing capabilities to indicate, perform or achieve a particular function, task or result”. Software can be protected either by copyright or patent or both. Patent protection for software has advantages and disadvantages in comparison with copyright protection. There have been many debates concerning patent protection for software as information technology has developed and more software has been developed. This caused mainly due to the characteristics of software, which is intangible and also has a great value. It needs huge amount of resources to develop new and useful programs, but they are easily copied and easily transmitted through the internet all over the world. Also due to the development of e-commerce, there is urge for patenting of business methods.

Computer programs remain intangible even after they have actually come into use. This intangibility causes difficulties in understanding how a computer program can be a patentable subject-matter. The questions of whether and what extent computer programs are patentable remain unresolved.

More than half of the 176 countries in the world that grant patents permit the patenting of software-related inventions, at least to some degree. There is a worldwide trend in favor of adopting patent protection for software-related inventions. This trend accelerated following the adoption in 1994 of the TRIPS Agreement, shareit for laptop  which mandates member countries to provide patent protection for inventions in all fields of technology, but which stops short of mandatory patent protection for software per se. Developing countries that did not provide such protection when the TRIPS agreement came into force (January 1, 1995) have until January 1, 2005, to amend their laws, if necessary, to meet this requirement.


The European Patent Convention is the treaty that established the European Patent Organization (EPO). The EPO grants patents that are valid in those member countries designated in the EPO application and subsequently perfected in those countries. Enforcement of the EPO patent is obtained through the national courts of the various countries.

The software has been protected by copyright and excluded from patent protection in Europe. According to Article 52(1) of the European Patent Convention (EPC), European Patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step. Article 52(2) excludes schemes, rules and methods for performing mental acts, playing games or doing business, and programming computers from patentability. Article 52(3) says that prohibition relates only to software ‘as such’.

For Some years following implementation of the EPC, software in isolation was not patentable. To be patentable the invention in such a combination had to lie in the hardware. Then came a test case, EPO T26/86, a question of patentability of a hardware-software combination where hardware itself was not novel. It concerned patent for a computer control X-ray machine programmed to optimize the machine’s operating characteristics for X-ray procedures of different types. The patent office refused to patent the invention. Technical Board of Appeal (TBoA) disagreed and upheld the patent, saying that a patent invention could consist of technical and non-technical features ( i.e. hardware and software). It was not necessary to apply relative weights to these different types of feature.

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