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11 March 2016PatentsAbhishek Pandurangi

Indian Patent Office’s U-turn on software patents

After the Indian Patent Office (IPO) published the first set of guidelines for examining patents for computer-related inventions in August, in February the office introduced an amended set of rules.

While the previous guidelines were kept in abeyance in response to strong protests by critics, a revision was expected, but surprisingly the IPO has replaced an excessively liberal set of guidelines indicating that any software is patentable with a contrary one which almost indicates that no software patents are allowed.

Among other deviations, while the previous guidelines gave several examples of software and quasi-business method claims that were acceptable—some of them inconceivably broad—the present guidelines do not offer a single patentable example. Below is an example in the previous guidelines which led to raised eyebrows across the industry:

“Example 8.4—A computer-implemented method comprising: identifying one or more person names in a set of one or more documents, with each identified person name more likely to refer to a single person in a profession than other person names in the document; identifying descriptive language from one or more documents, based on the identified names; and identifying within one or more documents other person names that refer to persons in the profession, based on one or more portions of the identified descriptive language.”

The contention with the revised guidelines is whether they reflect the true interpretation of the IPO when it comes to the Indian law on software/business method patents, ie, section 3(k), and its established practice developed over the years on the expression “per se”, strongly embedded in it.

Section 3(k) of India’s patent statute, the Patents Act, 1970, reads as follows: “3. The following are not inventions within the meaning of this act—(k) a mathematical or business method or a computer program per se or algorithms.”

As shown in my previous article on the initial guidelines, and further substantiated here with additional examples, the position at the IPO has always been ‘yes’ to software patents which can be tied to a tangible technical effect or are engaged distinctly with components of an embedded system, thereby honouring the expression “per se” in section 3(k).

Table 1 shows a few recent examples of granted/accepted patents which clearly reflect the prevalent practice at the IPO in light of section 3(k).

Table 1: Patents granted at the IPO under section 3(k)

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Patents
16 October 2015   New examination guidelines declare that software and business methods are patentable in India, clarifying the age-old perception to the contrary, but not everyone is happy, as Abhishek Pandurangi of Khurana & Khurana reports.