India is the country who has always been in the talks for its IP laws one of which when it comes to patenting of the software; a monopolization that has only benefited largely known corporations and disputed innovation in the software industry from across the world. If we recall the past, after having the nudging response over the guidelines for examining the computer related inventions (CRIs) issued in August 2015, Indian Patent Office recently has issued the revised guidelines to examining the CRIs with greater explanations for better understandings. The earlier guidelines was critically played off by the various IT giants of the nation as well as the identifying appeal made to the prime minister’s office necessitated the Indian Patent Office to revise the draft.
The guidelines has contended with the legal provisions relating to CRIs, terms and definitions, examining procedure, tests to determine the patentability and ended with the example to provide the idea what is not patentable. The establishment of the novelty, inventive step and industrial applicability will remain similar as that for the other invention but it was stated that the eye of the Examiner will target the determination that the subject matter relates to one of the excluded categories or not. In furtherance, the guidelines have provided new test and other noteworthy changes to determine the patentability where it was stated that Examiners may rely on the following three stage test in examining CRI applications:
(1) Properly construe the claim and identify the actual contribution;
(2) If the contribution lies only in mathematical method, business method or algorithm, deny the claim;
(3) If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.
These criteria explain to focus that one should always aim on the art to construct the claims. The ultimate ruling of the guidelines provides the arena of interpretation of statutes for all in case one wants to get through from the difficulties.
The guidelines were ended with sets of negative illustrations which mean the content of the examples depicts what is not patentable. The examples provided are different case laws and illustrative claim analyses lead the guidelines to be more expressive document to understand the indicator to choose the right path. Overall, the new Guidelines offer more clarity and stick to the Patents Act intention of disqualifying patentability of computer programmes per se rule but if you can see the other way out it has elucidated many questions. Let us see how this dices roll over.
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