INTRODUCTION
Information Technology includes the whole scope of inputting, storing, retrieving, transmitting and managing data through the use of computers and various other networks, hardware, software, electronics and telecommunication equipment. It has gained special significance in the past two decades and emerged as a vital tool for scientific development. Computer Related Inventions (CRIs) are those that involve the use of computers, computer networks or other programmable apparatus and include such inventions having one or more features of which are realized wholly or partially by means of a computer programme or programmes.
Creators of knowledge in the domain of Computer Related Inventions (CRIs) have consistently endeavored for appropriate protection of their IPRs. The patent regimes have to cope with the challenges of processing of patent applications related to computer related inventions and other related technologies. Major patent offices across the world are confronted with the issue of patentability of CRIs. They have developed examination guidelines/ manuals for examination of patent applications from these areas of technology so as to achieve uniform examination practices.
GUIDELINES ON EXAMINATION OF COMPUTER-RELATED INVENTIONS IN INDIA.
For many years, the regime of Computer-Related Inventions in India has remained unclear, as Section 3(k) of the Patents Act 1970, excludes the patentability of computer programmes per se.
As per the Guidelines for Examination of Computer Related Inventions by the office of the Controller General of Patents, Designs, and Trademarks, the computer related inventions are defined as those that involve:
- The use of computers
- Computer networks
- Other programmable apparatus.
- Inventions with one or more features that are realized wholly or partially by means of a computer programme.
How to determine the excluded subject matters relating to CRIs
- Claims directed as
"Mathematical Method"
- Mathematical methods, like a method of calculation, formulation of equations, finding roots of numbers and all other similar acts of mental skill, are not patentable.
- Mere manipulations of an abstract idea or solving purely mathematical problem/ equations without specifying a practical application also attract the exclusion under this category.
- Below mentioned does not come under
exclusion:
- Encoding
- Reducing noise in communications/ electrical/electronic systems
- Encrypting/ Decrypting electronic
- Claims directed as
"Business Method"
- The claims drafted not directly as "business methods" but apparently with some unspecified means are held nonpatentable.
- If the claimed subject matter specifies an apparatus and/or a technical process for carrying out the invention (even partly), the claims shall be examined as a whole.
- When a claim is "business methods" in substance, it is not to be considered a patentable subject matter.
- Mere presence of words like, "enterprise", "business", "business rules", "supply chain", "order", "sales", "transactions", "commerce", "payment", etc. in the claims may not lead to conclusion of an invention being just a "Business Method".
- If the subject matter is essentially about carrying out business/ trade/ financial activity/ transaction and/or a method of buying/selling goods through the web (e.g. providing web service functionality), the same should be treated as a business method and shall not be patentable.
- Claims directed as
"Algorithm"
- A set of rules or procedures or any sequence of steps
- Any method expressed by way of a finite list of defined instructions, whether for solving a problem, and
- Whether employing a logical, arithmetical or computational method, recursive or otherwise, are excluded from patentability.
- Claims directed as
"Computer Programme per se"
- Computer programmes
- Set of instructions
- Routines and subroutines.
- Computer programme products
- Storage Medium having instructions
- Database
- Computer Memory with the instruction stored in a computer-readable medium.
Granted and Rejected cases of CRIs in India:
Granted cases:
5992/DELNP/2005 has been granted as Indian patent number 247539 on April 18, 2011 by the Indian patent office.
1398/DELNP/2003 is now a granted patent as patent number 256171. This patent application was initially refused for patent registration by patent office under the provisions of Section 3(k) of the Indian Patents Act.
830/CHENP/2009 application number was granted to Facebook in February 2017 on a method "for generating dynamic relationship-based content, personalized for members of the web-based social network".
Rejected cases:
The patent application number 3624/DELNP/2005 for the invention titled "A Chaos Theoretical Exponent Value Calculation System" was denied patent by the Indian patent office on the grounds that said invention falls under the category of mathematical formulae even if it produces a technical effect. The invention in this case claimed a mathematical method for evaluating time series signals.
Conclusion
While drafting a software patent application one should keep in mind the patentability criteria under section 3 (k) of Indian Patent Act which bars a mathematical or business method or a computer programme per se or algorithms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
