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Patent office decisions

The Indian Patent Office have provisions to grant patents to software. The section 3(k) states the patent could not be granted "per se" (not the original words) which means that a software could not be granted permission "in itself". That is it has to be provided along with a device and showed how does it work in the device.

2008 patents manual proposal

This issue is still an active danger (as of August 2009). The unclear "per se" term in section 3(k) is particularly worrying.

Feedback on the 2008 draft patent manual

  • FSF India's submitted comments - Could not find a link to this on the Patent Manual Feedback site, has this been sent and did it reach them?
  • Red Hat's submitted comments (quote: "...Indian legislators have clearly chosen to exclude software from the list of patentable inventions ... we herby submit that the Draft Patent Manual should be amended to reflect the will and intent of the Indian Parliament.")
  • All India People's Science Network
  • Department of Management Studies, IIT Delhi
  • Japan Intellectual Property Association "We consider that India should provide equal protection accorded in other countries ... “any inventions, whether products or processes, in all fields of technology” shall be patentable" and "We hope that the Manual clearly states that a patent application is not rejected by the statement of “software” or “computer program”"
  • Remfry and Sagar, New Delhi "... it would be illogical to grant a patent for a method, and an apparatus adapted for carrying out the same method, but not for the computer program, which comprises all the features enabling the implementation of the method and which, when loaded in a computer, is indeed able to carry out that method"
  • FICCI's comments - "The term “computer programme per se” has not been defined. It is to bring to your notice that EPO construes the term “computer programme” “as such” or “per se” to mean a programme that is merely abstract creation, lacking in technical character. In view of this interpretation, it takes a position that “a computer programme claimed by itself is not excluded from patentability if the programme, when running on computer or loaded onto a computer, brings about, or is capable of bringing about, a technical effect which goes beyond the “normal” physical interactions between the programme (software) and the computer (hardware) on which it is running."
  • Anand and Anand, New Delhi - "A computer program having a technical effect and providing a technical solution should be allowed without constrains of hardware. In view of the above, software related invention may be patentable if accompanied by a novel and non obvious technical effect which adds the art of technology"
  • Confederation of Indian Industry - "As a general rule, a novel solution to a problem relating to the internal operations of a computer, although comprising a program or subroutine, will necessarily involve technological features of the computer hardware or the the manner in which it operates and hence may be patentable"
  • FFII's analyses

Response to the Draft Patent Manual

Consultation closed 4 Dec 2010

A draft manual was published for comment. The deadline was 4 December 2010.

(ESP did not hear of this in time to participate.)

Utility models proposal of 2011

In response to a 2011 proposal for the creation of utility models in India, some replies contained interesting comments about how this could be bad if applied to software:

April 2005 legislative proposal

While updating the patent legislation in 2004, there was a proposal to make software explicitly patentable, however, after broad resistance, this part of the proposal was removed in April 2005.

External links

Press coverage