Open Access Research Article
AN ANALYSIS OF SOFTWARE PROTECTION UNDER PATENT AND COPYRIGHT LAW IN INDIA
Published Paper
Article Details
AN
ANALYSIS OF SOFTWARE PROTECTION UNDER PATENT AND COPYRIGHT LAW IN INDIA
AUTHORED
BY - ASWATHI
RADHAKRISHNAN
ABSTRACT
In this
Digital era, technology has a very significant role in the development of the
economy. Software is becoming an essential factor in the global economy by
promoting technological advancements. Is there adequate protection provided
under to software? Intellectual property laws protect the work's owner and its
creation. Software is protected under copyright laws. However, copyright laws only
safeguard the owner’s expression of ideas rather than the idea itself. Now, the
question is why it shouldn't be protected under patent law, which covers the
product's innovative ideas and the invention. The protection under Copyright
laws in India is very limited and it only focuses on the written source code
and the object code of the software. Patent, on the other hand, under section
3(k), deals with the computer program per se, which is not patentable under the
Indian Patent Act. Other nations have flexible approaches towards the
patentability of software. Both the Patent and Copyright laws have a
significant role in software protection. This paper tries to focus on why
software patenting is not recognised and how the judiciary addresses this
issue. This paper also looks into how other developed countries addressed
software patenting.
Keywords: Software
Patent, Copyright, Patent, Technology
Introduction
Software systems have significantly
advanced various industries, leading to the rise of software patents aimed at
safeguarding computer-related innovations. Software, typically comprising coded
instructions for operating computers or executing specific tasks, encompasses
programs, procedures, and routines vital for computer system operation.
Software patents may cover codes, user interfaces, libraries, or algorithms.
India has experienced a surge in the export and import of software-related
innovations, prompting the establishment of intellectual property laws to
govern the protection of such inventions within the country.
Section 2(o) of the Copyright Act,
1957[1],
delineates that computer programs are categorized as literary works. This law
offers safeguarding for original expressions within computer software.
Nonetheless, if a computer program results in a technical effect, it qualifies
for patentability under the Indian Patent Act, 1970[2].
In essence, the mere expression of methods and programming codes is
copyrightable, while the technical impact and operational aspect of software
are eligible for patent protection as they do not fall under copyright
jurisdiction. Section 3(k) of the Patent Act, 2002, specifies that computer
programs cannot be patented independently. However, computer software is
eligible for a patent grant if it does not pertain to business methods,
mathematical methods, or algorithms. Moreover, compliance with section 3(k)
necessitates demonstrating the incorporation of hardware as a fundamental
component alongside the software in the invention.
Repeatedly, various courts have dealt
with issues surrounding software patents, impacting their status regarding
patent eligibility. The case of Ferid Allani v. Union of India stands out as a
pivotal judgment in assessing the patentability of software in India. In this
case, Ferid Allani filed a patent application for a method and device enabling
access to web information sources and services. The Indian Patent Office
rejected the application, citing the invention as a computer program under
section 3(k) and lacking novelty and inventive step in the device. On appeal,
the Delhi High Court ruled for a reassessment of the patentability of
computer-related inventions. The court determined that the patentability of
such inventions would depend on the presence of a "technical effect and/or
technical contribution".[3] If
the invention demonstrates either, it qualifies for a patent despite being a
computer program.
Despite various tests, criteria, and
court rulings, the patentability of software remains a contentious issue. One
argument is that patenting software could stifle research and development by
granting complete monopoly to the patent holder, thereby hindering other
researchers, scientists, and students from working on the patented software.
Many argue that software, essentially a set of programs akin to transcripts of
algorithms in programming languages, cannot be patented as these languages have
roots in mathematical transcripts, which are not patentable. Conversely, there
is support for software patenting within the tech community.
Patenting software carries several
economic advantages. It allows for licensing, potentially increasing the
valuation of small tech startups. Patents provide exclusive rights to the
inventor or assignee for a limited period, encouraging innovation as inventors
strive to develop new software types for the associated financial benefits. The
economic gains from patenting can be reinvested in further research and
development. Software is integral to progress across multiple industries.[4]
While software patenting has drawbacks, they can be mitigated through
Intellectual Property mechanisms like patent pools and compulsory licensing.
This paradigm suggests that copyright
law is sufficient to protect software since copyright protection subsists on a
piece of work without necessarily registering it. Several companies and
developers have created open-source software that can be obtained for free to
oppose software patents.
Software Patents in India
Innovation serves as the driving
force behind the advancement of any modern economy. Inventions, which form the
foundation of innovation, are geared towards enhancing productivity. The
provision of incentives for inventors fosters heightened productivity,
resulting in an augmented supply of goods and services in the market and
thereby fueling economic expansion.
Therefore, safeguarding these
intellectual creations becomes paramount. The patent system offers inventors
the means to safeguard and exert control over the utilization of their
inventions
.
In today's increasingly digital
world, a plethora of tools and technologies we rely upon operate on coded
software and computer systems. The Information Technology (IT) sector has
emerged as a significant and sought-after industry globally. Consequently, it
is imperative to protect the interests of innovators contributing to this
domain through the development of computer technology, software, and computer
programs.
While Indian legislation provides
protection for inventive technology and software through copyright and patent
laws, our focus here is on safeguarding computer software under Indian patent
law.
As per the Indian Patents Act of
1970, an 'invention' is defined under Section 2(i)(j) as a novel product or
process capable of industrial application and involving an inventive step.[5]
Thus, any product or process, including computer software, seeking patent
registration must fulfill these three requirements.
Protecting
intellectual property rights to a software
When we talk about software
licensing, the two things that automatically come to the minds of experts are
copyright and patents, which are the two well-known methods of protection for intellectual
property. Copyright is
one of the most common methods of protecting software programs because writing
source codes or programs are quite similar to writing a literary piece. A patent is one
of the best ways to protect intellectual property but the process is not that
easy, especially in India. There is a stringent criterion that needs to be
fulfilled in order to get a patent for software. Firstly, the patent can only
be granted to something new, which means it cannot be something which is
already discovered and in use. Secondly, it needs to be an inventive solution
and lastly, it needs to have industrial applicability. However, despite
going through a lengthy process of getting a patent, there is always the risk
of infringement and piracy of the software, thanks to the new digital
world.
With such advanced technologies and
programs, it is possible to copy the whole code of the program in just a few
minutes. On top of that, copyright protection does not necessarily mean that it
will protect the process, procedure or discovery of a program or software. In
general, novelty, non-obviousness and industrial usage of the technology are
the parameters which are seen before granting a patent to an invention,
however, computer software and algorithms fall in a different category
altogether. Patent laws create an exception when it comes to mathematical
formulas, scientific discoveries and algorithms.
Coming to India, the
software is not directly patented and a patent is granted if it is attached with
novel hardware which means that it is a unique invention and is capable of
industrial usage.
According to the RBI’s annual survey, the export of
India’s software services increased to
more than $108 billion in 2017-2018 from just $30-40 million in the 1990s. It
is expected to grow to 227 billion dollars in the year 2021-22. Considering
this amazing expansion and growth of the software industry, the Intellectual
Property laws need to be amended, in order to keep up with the modern day
because the last time Intellectual Property Laws were amended in India was in
the year 2005, which is 17 years back.
What are Software Patents?
Before delving into why software
patents face challenges under Indian law, it's essential to comprehend the
concept of software patents. Although not explicitly defined in Indian
statutes, legal experts rely on the dictionary definition, which describes
software patents as protections for computer programs utilized for specific
tasks.
However, the issue with patenting
software arises from Section 3 of the Patents Act. This section delineates what
cannot be patented in India. Particularly, Section 3(k) of the 1970 Act
excludes mathematical or business methods, computer programs per se, or
algorithms from the definition of 'inventions.'
While Section 3(k) explicitly
prohibits patenting computer programs (and, consequently, software), the
inclusion of the term 'per se' in the Patents (Amendment) Act of 2002 creates
space for certain computer programs and software to potentially qualify for
patent protection.
The rationale behind incorporating
'per se' can be traced back to the perspective articulated by the Joint
Parliamentary Committee during the introduction of the Patents (Amendment) Act
of 2002. According to the Committee, the intention was to extend patent
eligibility to computer programs that encompass additional elements ancillary
to or developed from such programs, thus rendering them potentially eligible
for patent protection.
Guidelines for computer-related inventions
Despite various efforts by the Indian
Patent Office to clarify the excluded scope under Section 3(k), ambiguity
persists. In 2015, the Patent Office introduced the 'subject matter' test to
assess the eligibility of computer programs for patents. This test mandated
that the program either interact with novel hardware or induce a technical
effect altering hardware functionality or performance.
However, the 2017 guidelines from the
Patent Office abolished this test. While the test aimed to limit the number of
software patent applications granted, its removal reinstated the reliance on
interpreting the term 'per se' to determine patent eligibility. Consequently,
there remains no clear legislative foundation for granting software patents,
necessitating a case-by-case assessment for each application.
How can Software be Patented in India?
Section 3(k) undoubtedly presents a
significant obstacle to securing patents for software. Despite the Indian
Patent Office's various attempts to clarify this section through guidelines,
ambiguity persists, complicating the path to software patents. However, several
Indian court judgments have highlighted key considerations for successfully
filing software patent applications.[6]
(a) Software itself is not inherently
patentable. A landmark case, Telefonktiebolaget LM Ericsson (Publ) v. Lava
International Ltd.[7],
emphasized that Section 3(k) applies when an abstract formula, like an
algorithm, is purely theoretical and applied for patenting. However, if an
algorithm is utilized by hardware components or creates a technical or
practical effect leading to a physical realization, it may be eligible for
patenting. Mere mention of an algorithm in a patent document does not imply
that the invention is solely the algorithm.
Similarly, Telefonktiebolaget LM
Ericsson (Publ) v. Intex Technologies (India) Ltd. established that inventions
demonstrating technical effects or contributions beyond being a computer
program per se are patentable.
(b) Software need not demonstrate
special adoption of hardware to be patentable. In Accenture Global Service Gmbh
v. The Asst. Controller of Patents & Designs & Ors.[8],
it was ruled that software or computer programs do not need to show inherent
novelty, non-obviousness, or be special adaptations of existing hardware to
qualify for patent registration.
(c) Software purely representing a
business method is not patentable. The case of Yahoo v Controller of Patents
& Rediffcom India Limited clarified that software tools purely embodying
business methods would not be granted patents. Technical advancements must not
merely manifest core business methods.
(d) Substance over form is crucial in
evaluating software patents. The 2017 guidelines emphasize that the substance
of software patents, judged on novelty, industrial use, and inventive step, is
paramount over their specific form. The decision in Lava International Ltd. reinforces
that a software patent's dismissal based solely on its form as a computer
program or algorithm is inadequate.
(e) Inventions displaying technical
effects are patentable despite being based on computer programs. Ferid Allani
v. Union of India & Ors. underscored that modern inventions often rely on
computer programs. The court clarified that the bar on patenting pertains to
"computer programs per se" and not all inventions employing computer
programs. If an invention demonstrates technical effects or contributions, it
remains eligible for patenting, even if based on a computer program.
These judgments provide critical
insights into the patentability of software in India, clarifying that Section
3(k) does not universally apply to all inventions utilizing computer programs
or software.
In the case of Enercon India Ltd. v. Aloys Wobben, a similar ruling was made regarding a computer program designed to enhance power output from wind turbines. An objection under Section 3(k) was raised against the program. However, the court, recognizing that wind turbines require advanced computer technology for control and cannot be manually operated, determined that a computer program executing a technical process, such as optimizing wind turbine performance for maximum power output, cannot be categorized as a 'computer program per se.' The court held that such an invention does not fall under the objection outlined in Section 3(k) of the Patents Act when the patent claim encompasses process steps aimed at carrying out a technical process or achieving a technical effect.
LEGAL
PROTECTION GUARANTEED UNDER
COPYRIGHT
LAW
Software is primarily viewed as the
subject of protection under Copyright Law. According to Black's Law Dictionary,
'software' refers to the information, typically in the form of computer
programs, which direct a computer to perform specific functions. Essentially,
computer software comprises instructions guiding technical functions, often in
human-readable formats known as 'source code' and 'object code'. The Indian
Copyright Act, 1957, under section 2 (ffc), defines a 'computer programme' as a
set of instructions expressed in words, codes, schemes, or any other form
capable of instructing a computer to perform a particular task or achieve a
specific result. Notably, the Copyright Law safeguards only the expression of
ideas, not the ideas themselves. Therefore, protection under the Indian
Copyright Act is limited to the words used to express software codes in a
readable medium. Software codes fall within the purview of 'literary work' as
per section 2(o) of the Copyright Act, 1957, encompassing computer programs,
tables, and compilations, including computer databases. However, the Copyright
Act does not extend protection to the non-literary functionality of software.
In the case of Shyam Lal Paharia v. Gaya Prasad Gupta,[9]
the Allahabad High Court relied on Justice Peterson's observations in
University of London Press Ltd v. University Tutorial Press Ltd,[10]
stating that while substantial copying is unlawful, adopting a work's central
idea does not constitute infringement. Similarly, with software works, the
central idea is susceptible to being copied, albeit with a different source
code generating similar results as the original software. Consequently, Indian
Copyright Laws do not protect the idea behind the work, only its expression.
Although considering software as literary work is not entirely inaccurate, it
is deemed incomplete. While Copyright Law protection is automatic, it solely
guards against literal copying and replication of software source code or
object code, without safeguarding the underlying software invention. Hence, the
Copyright protection provided for software is deemed insufficient, as companies
can appropriate valuable innovations existing in copyrighted software by
rewriting the code using different text combinations than the original.
LEGAL PROTECTION GUARANTEED UNDER PATENT LAW
In the late 20th century, with
advancements in technology, the focus shifted from physical to virtual objects,
particularly from hardware to software. Patent laws primarily aim to protect
novel and inventive ideas, with less concern for their expression compared to
copyright laws. However, the requirements for patent registration are stricter,
necessitating novelty, an inventive step, and non-obviousness to a skilled
person in the relevant field.
The registration of patents for
software has been widely debated, both in India and internationally. Article 10
of the TRIPS Agreement, read in conjunction with Article 27(1), permits patents
for subject matter possessing a 'technical character,' including software,
provided it exhibits certain technical characteristics.[11]
The Indian Patents Act, 1970,
underwent amendments in 2002 and 2005. Prior to these amendments, patents for
computer software were not explicitly excluded. However, following the 2002
amendment, computer programs were expressly excluded from patentability,
introducing the term 'computer programme per se' in Section 3(k) of the Act.
Ambiguity surrounds the
interpretation and applicability of Section 3(k) of the Indian Patents Act. For
instance, in the case of Accenture Global GMBH v. Assistant Controller of
Patents and Design Office, the Intellectual Property Appellate Board ruled that
a patent for a system for developing internet-hosted web services and software
was novel and did not fall under Section 3(k). However, no clarity was provided
on the conditions to be considered while analyzing a software patent
application under Section 3(k).
In 2015, in the case of
Telefonaktiebolaget LM Ericsson (PUBL) v. Intex Technologies (India) Limited,
the Delhi High Court stated that if an invention demonstrates a technical
contribution or effect and is not merely a computer program per se, it is
patentable. However, ambiguity remains regarding what constitutes a substantial
technical contribution or effect.
To provide clarity, the Office of
Controller General of Patents, Designs, and Trademarks issued Guidelines for
Examination of Computer Related Inventions (CRIs) in 2016. These guidelines
introduced a three-tier test for examining patent applications related to CRIs.
However, the three-tier test was removed in the Revised Guidelines for
Examination of CRIs in 2017, which emphasized considering patent claims as a
whole and not in isolation.
Despite these guidelines, protection
for software under the Indian Patents Act remains insufficient, as it does not
allow for the grant of patents for CRIs with novel and inventive software
operated on known hardware.
CONCLUSION
In today's society, software holds
significant importance in its sustenance and advancement. The world heavily
relies on various computer software codes, ranging from everyday devices like
smartphones and smartwatches to complex machinery and industrial equipment.
Hence, it is imperative to safeguard and advance inventors' rights in software
creation through a more robust patent enforcement system.
Indian courts have embraced the
notion of allowing software patents, and this article aims to outline how
software patents can be safeguarded in India based on court decisions.
Presently, there are established legal precedents defining the patentability of
computer programs and software. Future court rulings will further refine the
interpretation of Section 3(k) and its relevance to software and computer
programs.
The importance of granting
registration for software patents in India is more pronounced now than ever,
given the pervasive use of the internet and smartphones in today's generation.
However, achieving this requires a clear and unambiguous stance on software
inventions' protection in India. The current regime offers minimal protection
for innovations from India's flourishing software industry, leading to a lack
of incentive for domestic software developers to pursue patent protection.
Consequently, domestic business owners are left without a vital safeguard for
their creations.
Indian policymakers must address the
necessity of software patents to safeguard the interests of the software
industry and attract foreign investments into the Indian economy. It is
essential for the Indian Intellectual Property Office to clarify the
patentability criteria for computer programs and software inventions and ensure
their effective enforcement. There is a pressing need for policymakers to
expand the scope of protection for Computer Related Inventions (CRIs) under
Intellectual Property Laws in India and reconsider Section 3(k) to include
computer programs per se within the realm of patentable subject matter.
[1] Copyright Act, 1957
[2] Indian Patent Act, 1970
[3]https://www.law.cornell.edu/wex/intellectual_property#:~:text=Overview,monopoly%20in%20the%20protected%20property
[4] Richard Morgan and Kit Burden,
Legal Protection of Software: A Handbook, Encyclopedia ofInformation
Technology, Universal Law Publishing Co. Pvt. Ltd., First Indian Reprint, 2007
[5]
https://legislative.gov.in/sites/default/files/A1872-09.pdf
[6] Patent FAQ 2020, Office of
Controller General of Patents, Designs and Trade marks, India available at
https://ipindia.gov.in/writereaddata/Portal/Images/pdf/FinalFREQUENTLY
ASKEDQUESTIONS_- PATENT.pdf
[7] Telefonktiebolaget LM Ericsson
(Publ) v. Lava International Ltd CS(OS) No. 764/2015
[8] OA/22/2009/PT/DEL
[9] Shyam Lal Paharia And Anr. vs Gaya
Prasad Gupta 'Rasal', AIR 1971 Allahabad 192
[10] University of London Press Ltd v.
University Tutorial Press Ltd, 1916-2 Ch. D. 601
[11]
https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
Article Information
AN ANALYSIS OF SOFTWARE PROTECTION UNDER PATENT AND COPYRIGHT LAW IN INDIA
Authors: ASWATHI RADHAKRISHNAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.