How to File Software Patent Registration in India 

Software Patent Registration in India

Software patent/patents specifically for computer programs, software and mobile applications are highly debated topic in Indian Patent ecosystem as they are primarily blocked by Section 3(k) of Indian Patent Act.
Additionally, any software/computer program/mobile application devised to enact a mental act is further blocked by Section 3(m) of Indian Patent Act.
So, common question arises that how an inventor can protect his invention pertaining to software/computer program/mobile application.

How To Draft a Software Patent for Registration in India?

However, computer program per se is not patentable in India but Indian patent does not rejects a software patent/computer program patent/mobile app patent on absolute ground especially when the software/computer program is enacted by a novel system or device OR software/computer program is part of larger system. Consult a patent attorney/lawyer/agent to understand exactly how you patent your novel software. Software Patent/computer program patent/mobile app patent in India is granted for an embedded software in a mobile application, and/or software plus hardware combination. However, patent law in India does not allow patent protection for software per se, whereby patenting a computer program is prohibited.

One of the case for successful software patenting – https://www.firstpost.com/tech/news-analysis/software-patents-prohibited-under-indian-law-but-granted-in-spirit-3702725.html

Additionally, if a software/computer program/mobile app performs a function over a set of conventionally known hardware, then the software/computer program/mobile app must provide non-conventional output. In other words, the synergy of the hardware and software should use automated functions to explore a novel way of enacting a function through the hardware to produce new set of results.

The software patent/computer program patent/mobile app patent is also preferred to be filed in US patent office as the US patent office provide strong protection and market applicability of the software patent/computer program patent/mobile app patent. The inventor is also suggested to explore additional jurisdiction to file software patent/computer program patent/mobile app patent in order to gain strong market protection.

For better understanding, how a software patent/computer program patent/mobile app patent has to be pursued in India, few examples of previously granted patent applications are undermentioned:

(a) Google LLC filed patent application 3023/KOLP/2014 that is titled as “LOCATION HISTORY FILTERING”. The invention is about filtering location information received from multiple computing devices. During patent examination, the patent examiner raised objections under Section 3(k) of the Indian Patents Act, wherein the examiner stated that the claims 1-14 define computer instructions stored in a memory and executable by a processor, hence these claims fall within the scope of Section 3(k) of the Indian Patent Act.

As a response to said objection, the applicant responded by proving that the claims are not related to software/computer programs but a computing device, enhancing its technical effect through its constructional features.

(b) Oracle International filed patent application 231/KOLNP/2010 that is titled as “A SYSTEM AND METHOD FOR PREPARING COMPENDED BLOGS”. During patent examination, the patent examiner raised objections under Section 3(k) of the Indian Patents Act, wherein the examiner stated that the claims 1-10 were computer program per se and were thus non patentable.

As a response to said objection, the applicant responded by submitting Computer programs ‘per se’ are not non patentable as per the CRI guidelines. Since present claims provide a technical solution to a technical problem of collecting and collating information into a single blog, it qualifies to be patented.

Which invention qualifies for Software Patent Registration in India?

The inventors or applicants who have developed a software programme that is embedded into the hardware of the device and functions in such a way that the output produce by the hardware in assistance of the software programme should significantly different from the input. Most of the time, if the software has some analytical and quantitative based results qualifies for patent in India. Also, an artificial intelligence based software can be filed as patent in India. For example – if a software program running on a personal computer collects a geographical based data from a plurality of persons and showcases it on a user interactive display then such software programme cannot be considered as patentable in India.

While, if the same software program implements an analytical model to convert the geographical data to detect a proximity of a health personnel to the person in need. Then, the software is considered to be patentable in India.

Hence, for qualifying as software patent in India, a software has to show processing ability and deduction power to generate an innovative result data stream.  

Additionally, the software programme having unique hardware design can also be considered as patentable in India. Hence, for applying software patent in India there are two ways:

  1. The software is running on an embedded system and capable of producing an output different than an input;
  2. The software as well the hardware is novel in nature and together they are producing same or new results.

Is there any preferred country for software patent registration other than India?

United States Patent and Trademark Office allows software patenting. Hence USPTO can be a preferred choice of country to apply for a software patent. There various other jurisdictions that allow software patenting but they are not as welcoming as USPTO.

Advantages of software patent registration in India

Generally, software patents are called as most volatile patents as a development of a successor or an enhanced version of a patented software generally takes much less time than other patents. But still, with right strategy a software patent can be there in the market with monopoly for a large time period. For doing so, following procedure have to be followed:

  1. File multiple patents creating a strong patent portfolio that increase a chance of sustaining the market and also allows better enforcement.
  2. Developing at least one novel hardware that is compatible with a group of software. This will allow to claim same hardware for your group of software and also receive grant for them.
  3. Filing multiple patent of additions through continuous research and development for a previously filed software patent. This allow to eradicate any emerging competition for your software patent.