Software systems have immensely contributed to technological advancements in various industries. This has led to the emergence of software patents that are aimed at protecting computer-related inventions.
Software can typically be defined as a set of instructions in codes used to operate computers or execute a particular pre-programmed task. The Britannica Encyclopedia defines it as "the entire set of programs, procedures, and routines associated with the operation of a computer system".
A software patent may include patenting a code, a user interface, libraries or algorithms. In recent years, India has seen a boom in the export and import of software-related inventions. Accordingly, IP laws have been created to regulate the protection of software-related inventions in India.
Section 2(o) of the Copyright Act, 1957, specifies that computer programs fall under the ambit of literary works. The Act grants protection to an original expression and computer software. However, if the computer program leads to a technical effect, it is considered patentable under the Indian Patent Act, 1970. In sum, it can be said that the mere expression of the methods and programming codes is copyrightable. However, the software's technical effect and operational part are patentable since it does not fall under the ambit of copyright protection. Section 3(k) of the Patent Act, 2002, specifies that a computer program cannot be patented per se.
However, computer software is eligible for a patent grant if it is not a business method, mathematical method or algorithm. Additionally, according to section 3(k), it is also essential to show that hardware forms an essential part of the invention and the software.
Time and again, several courts have adjudicated upon matters concerning software patents which has impacted their status regarding patentability. Ferid Allani v. Union of India is a landmark judgment that assessed the patentability of software in India. The petitioner, Ferid Allani, had filed a patent application for a method and a device for accessing information sources and services on the web. The Indian Patent Office rejected the application because the invention was a computer program as per section 3(k) and that the device lacked novelty and an inventive step. Upon appeal, the Delhi High Court held that the computer-related invention's patentability status should be re-examined. The court adjudicated that the patentability of computer-related inventions will be examined based on the presence of "technical effect and/or technical contribution". If the invention demonstrates a technical effect or a contribution, it is patentable despite being a computer program.
Despite tests, conditions and judgements laid down by courts, the patentability of software is a subject of heated debate. On one hand, it is contended that patenting software would impede research and development. Patenting a software may allow a company to completely monopolize it, thus, disallowing other researchers, scientists, and students from developing or working on the patented software. Several organizations and individuals believe that software is a set of programs that can be considered the transcript of an algorithm in programming language. This programming language has roots in the transcript of a mathematical language. Since the roots of programming languages can be traced back to mathematics, they cannot be patented. On the other hand, patenting of software is supported by many from the tech fraternity
Patenting software may come with several economic benefits. The patent for software can be licensed, which may significantly increase the valuation of small tech start-ups. A patent grants an exclusive right over the invention to the inventor or the assignee for a limited period of time. Patenting software would also encourage innovation. Since patenting comes with several monetary benefits, inventors may actively try to develop new types of software. The economic benefits that are obtained from patenting software can be reinvested in further research and development. Software is the backbone of development in several industries. While patenting software can come with several disadvantages, it can be balanced with the help of Intellectual Property systems such as 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.
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