Computer Software & Business Method Patents In India Computer Software

Business Method Patents In IndiaIndia, like European Union, does not allow patents for innovations related to mathematical or business method or computer programme “according to se” or algorithms. The applicable provision underneath the Indian Patents Act reads as below:


three. What are not inventions.- the following are not inventions inside the which means of this act,– (okay) a mathematical or enterprise technique or computer programme in step with se or algorithms; The Section makes it amply clear that algorithms aren’t patentable in India. Though as in keeping with the Indian Patent Act, mathematical approach, business technique or pc programme in line with se aren’t allowed. The draft patent guide defines how inventions relating above ought to be handled with the aid of the Indian Examiners and lays down parameters under which such innovations shall be patentable in India.

The proposed patent guide defines computer implemented invention as any invention the performance of which involves the usage of laptop, laptop network or other programmable apparatus, or an invention one or extra functions that are found out wholly or partly via a pc programme/ programmes. Further, patent manual defines Computer programmes as a set of commands for controlling a chain of operations of a statistics processing machine which carefully resembles a mathematical technique. Computer programme can be expressed in various bureaucracy e.G., a sequence of verbal statements, a flowchart, an set of rules, or other coded form and maybe supplied in a shape suitable for direct access into a specific laptop, or may require transcription right into a unique layout (computer language). It may additionally simply be written on paper or recorded on a few system readable medium together with magnetic tape or disc or optically scanned record, or it perhaps completely recorded in a manipulate store forming a part of a computer.

Though proposed patent guide emphasises on disclosure of mode of operation for innovations concerning apparatus and essential collection of steps for system related invention, but it lays down categorically that a hardware implementation acting a singular feature isn’t patentable if that particular hardware gadget is understood or is plain irrespective of the function performed. It manifests that for such kind of invention insertion of approach steps in apparatus or some dependency shall be required to make them non-obvious.
The patent guide has additionally extensively categorised innovations associated with laptop/ laptop programmes as below:

(a) Method/technique; (b) Apparatus/gadget; and (c) Computer application product


Further to make the discovery patentable in India, the approach claim ought to honestly define the stairs worried in carrying out the discovery and ought to have a technical character. In other words, it have to resolve a technical trouble. The claims must contain the details regarding the mode of the implementation of the discovery through. Hardware or software, for higher clarity. The claim orienting toward a “procedure/technique” must comprise a hardware or machine quandary. Technical applicability of the software claimed as a technique or method claim, is needed to be defined in relation with the particular hardware components. Thus, the “software in step with se” is differentiated from the software program having its technical application within the enterprise. Therefore, as consistent with the patent guide, a claim directed to a technical system which technique is achieved under the control of a programme (whether by hardware or software program), can not be appeared as referring to a computer programme as such.
An example is also stated inside the proposed patent guide on what sort of claims shall be allowable.
“a technique for processing seismic information, comprising the steps of amassing the time various seismic detector output alerts for a plurality of seismic sensors placed in a cable.”

“Here the alerts are accrued from a exact recited structure and as a result allowable.”

What is giant right here is that patent workplace is not emphasising on embedment of hardware components within the method claims, as the most effective condition for patentability of approach claims, but requires it as a system/hardware drawback. Therefore the crucial of technique claims are:
a) It ought to clear up a technical problem; b) It must incorporate the details regarding the mode of the implementation of the discovery via. Hardware or software, for higher readability; and c) It ought to include a hardware or system hassle.


As in step with the proposed patent manual the equipment claim must really define the imaginitive constructional hardware capabilities. This may want to act as a challenge, as typically hardware or gadget don’t involve novel or creative constructional feature however are programmed to perform in a unique or imaginative manner. Further, it shows that the claim for an apparatus have to incorporate a “system challenge” for an apparatus, where “trouble” method defining the particular software and now not the overall application. As a widespread rule, a unique technique to a hassle referring to the inner operations of a laptop, although comprising a program or subroutine, will necessarily contain technological functions of the computer hardware or the manner in which it operates and consequently can be patentable.

An instance is likewise cited as to what manner manner limitation will be inserted in the claim. For example, in a pc comprising way for storing signal facts and a primary resistor for storing data, the clause beginning with “for” describes the feature or process carried out through the equipment, and form the a part of “technique drawback” here.

Therefore the important of apparatus/gadget claims are: a) It have to surely outline the imaginative constructional hardware capabilities; and b) It need to include a “manner challenge” for an apparatus, in which “problem” means defining the specific utility and now not the overall software.


A careful interpretation and analysis of the supply makes it clean that it is computer programme in keeping with se that aren’t allowed as they’re problem rely of copyright in India. The motive for now not thinking about the software as patentable concern remember became to keep away from duality of safety to be had to software. But difficulty be counted of copyright may be best their literal presentation of software program which includes coding deciphering or algorithm shape and greater precisely it’s far their algorithms shape that the Indian Patents Act does now not bear in mind the patentable challenge depend.

The proposed patent manual considers the claims referring to software programme product as not anything however laptop programme in line with se certainly expressed on a laptop readable storage medium and as such are not allowable. Therefore calls for something tangible to deliver them out of provisions of Section 3 (K) of the Indian Patents Act i.E. Embedding of hardware components.

For instance, if the brand new function comprises a fixed of commands (programme) designed to control a known laptop to cause it to perform preferred operations, with out unique adoption or change of its hardware or organisation, then irrespective of whether claimed as “a laptop arranged to operate and so on” or as “a method of working a computer”, etc., isn’t patentable and for this reason excluded from patentability.
It creates an ambiguity as whether or not a patent shall be allowed wherein all criteria for method or procedure claims as required via patent workplace are met. The only distinction from the preceding classes can be that during present class “mode of implementation of the invention” isn’t noted in the declare, which anyhow must no longer exchange the very individual of the invention.

Patent manual further clarifies that the claim may stipulate that the commands had been encoded in a particular manner on a selected recognized medium however this would no longer affect the problem. E.G., A program to assess the price of PI or to find the square root of a number are held no longer allowable. However, an invention consisting of hardware in conjunction with software program or pc application with a purpose to carry out the feature of the hardware may be considered patentable. E.G., embedded structures.
Therefore, claims need to have few hardware components as an essential a part of the discovery and a few shape of interdependence ought to be proven among the software and hardware additives. Hence, claims relating to strategies utilizing computer applications for its operation are patentable, as long as they do no longer declare computer applications itself.

Therefore the critical of pc application product claims are:

a) Must involve hardware components; b) Computer programmes should perform characteristic of the hardware; and c) There must be interdependence between the software and hardware components


In history of innovations referring to enterprise techniques filed in India, most important motives for negating the invention was lack of business utility, that is one of the primary condition to qualify as an invention and consideration whether or not same in non-patentable being commercial enterprise approach can be considered best if the situation is first located to be invention.

Invention is described beneath Section 2(1)(j) of the Indian Patents Act, 1970 and reads as comply with:-
“Invention” approach a brand new product or manner involving an resourceful step and able to commercial software.”

In Melia’s Application (BL O/153/ninety two), where an application relating to a scheme for changing all or part of a prison sentence for corporal punishment changed into held to lack industrial applicability and also to be a method for doing enterprise.

In John Lahiri Khan’s Application (BL O/356/06) a way for effecting introductions which will making friends became held not to be industrially relevant, even though it can be completed by way of a business organization. It turned into also determined to be non-patentable as a way of doing commercial enterprise.
“Capable of commercial utility” is described under Section 2(1)(ac) of the Indian Patents Act, 1970 and reads as follow:-

“Capable of commercial utility”, with regards to an invention, way that the invention is capable of being made or used in an enterprise.

In re: Bernard Bilski, US Federal Court of attraction in its judgement dated October 30, 2008 upheld that commercial enterprise methods cannot be patented. The court determined that the only evaluation for determining whether or not an invention is patentable ought to be the “device-or- transformation take a look at” i.E. Requiring involvement of a gadget (like in case of pc application product) or remodeling a piece of writing (for details talk over with case law).

Though there aren’t any unique, tips in proposed draft guide as to the way to treat innovations bearing on enterprise methods, the necessities for patentability as in case of computer programmes or mathematical strategies becomes of fantastic significance and may be relied.
Therefore the enterprise method according to se may not be patentable, however its technical implication may be a topic remember of patentable invention.


A mathematical approach is one that is executed on numbers and affords a bring about numerical form (the mathematical technique or set of rules consequently being simply an summary idea prescribing a way to perform at the numbers) and now not patentable. However, its utility may be patentable if done feature is technical process and declare is directed to such technical manner no longer the mathematical technique.
Reference has been made to Vicom/Computer-associated invention [1987] 1 OJEPO 14 (T208/eighty four) wherein the discovery concerned a mathematical technique for manipulating statistics representing an picture, main to an improved virtual image.

Claims to a technique of digitally filtering statistics performed on a conventional wellknown purpose computer had been rejected, in view that the ones claims had been held to outline an abstract concept no longer prominent from a mathematical approach. However, claims to a method of image processing which used the mathematical technique to perform on numbers representing an image may be allowed. The reasoning changed into that the picture processing achieved become a technical (i.E. Non- excluded) technique which associated with technical quality of the picture and that a claim directed to a technical method in which the approach used does not seek safety for the mathematical technique as such. Therefore the allowable claims as such went beyond a mathematical method.

Therefore everyone inquisitive about protecting an invention in India or for any a part of the arena has to greater careful on the time of filing basic software (priority utility). The specification in addition to claims need to be changed in pretext of above before filing of patent software or else the description have to have sufficient aid for change of the claims to include hardware components. One of the most secure standards deployed by the Examiner to find whether or not any hardware capabilities are worried inside the invention is to require inclusion of reference numerals for hardware components inside the description as well as claims.

Jeffery D. Silvers
Love and share my articles, I will be happy to react on it ! Spent 2002-2009 promoting weed whackers in Edison, NJ. Earned praise for importing junk food for fun and profit. Spent 2001-2006 exporting teddy bears in Atlantic City, NJ. Had some great experience investing in tattoos in Fort Walton Beach, FL. Spent 2002-2007 selling action figures in the aftermarket. Enthusiastic about working on basketballs on the black market.