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To comply Section 3 (k) of Indian Patent Act and Berne Convention, in which India is a signed party, the Indian Patent Office objects to allow the software per se patent application as a patentable subject matter. Sec 3(k) can be read as "a mathematical method or business method or a computer program per se or algorithms" is not patentable subject matter. And Berne Convention says that "Software is protected as works of literature" i.e. software is protected under copyright (amended Indian Copyright Act, 1994). Hence, to avoid the dual nature in legal protection, software per se patent applications have not been allowed in India. The draft manual of Amended Patent Act in 2005, for the first time introduces patentability criteria in the computer related patent application. The said criteria includes the legal boundary of the word "software or computer program per se" i.e. under what extend a software or computer program related invention falls in the patentable subject matter. With this move, India has joined the league of countries in the market economies of software industry.

"Software per se" is not patentable in India whereas, software related inventions or computer related invention accompanied by a novel and non-obvious technical application to the industry is patentable subject matter. Method claims should include technically enable matter to produce technical effect and System claims of the invention should comprise software embedded with hardware components. The method or process based software related invention is patentable only if the claims of the invention involve, the following steps such as process to have a novel and inventive technical effect or in other words, it should solve a technical problem in the prior art, it should comprise a method to incorporate the details regarding the mode of the implementation of the invention via Hardware, for better clarity, it should comprise a process or method required to be defined in relation with the particular hardware components and it should have hardware or machine limitation.
A method of controlling an information processing apparatus by means of communicating via the Internet with an external apparatus. Here, though a network is involved an external apparatus and information processing apparatus are however involved to carry out the methods and hence, such types of methods involving technical features accompanied with the hardware parts are allowed.
And whereas, a System or apparatus type software related invention is patentable only if the claims of the invention involve, a clearly defined inventive constructional hardware features along with the software and a "Process limitation" for an apparatus or system, where "limitation" means defining the specific application and not the general application.
A system for converting graphical display of a starting language to that of a selected language and said the said system comprising a microprocessor, a display apparatus having a display panel and a display control having control programs, a text store chip comprising alphanumerical identification expressions having associated alphanumerical message character strings in the selected language. Such types of system claims have been allowed recently by the Indian Patent Office.
Discussion on a granted software or computer program related patent in India
A patent application having Application No: 870/DEL/2001 bearing the title "Method and Apparatus for Computer Software Analysis" accompanied by 19 claims in the complete specification. Whereas, to comply objections reported in the FER such as for e.g. "the claims fall within the scope of sub clause of section 3 (k) of Indian Patent Act" and "Title is inconsistent with the description and claims", only one claim out of 19 claims was allowed along with the title "A System for Determining Complexity of Computer Program" by the respective patent office to overcome the said objections.
Main object of this instant invention is to provide a measurement system comprising a consistent and repeatable measure of complexity in software through two of the central notions of the measurement system 1) decision points and 2) complexity index to make accurate cost estimates for software development, enhancement, testing, etc which is in fact necessary for a vendor to remain profitable in the market. However, estimating cost of a software product is one of the most difficult and error-prone tasks in software engineering at that time of filing the application. This invention solves this problem by analyzing the computer software for determining the complexity of a computer program in which, from the program source code certain predetermined items (decision points) are determined by means of another computer program recorded thereon a computer readable medium of computer program product to calculate complexity index. In such invention even though the description contains so detailed methods for how to calculate the Complexity Index for different decision points occurring in the program, no such methods and the corresponding software parts have been allowed in the claims, as they were present in the claim portion of the earlier specification before examination, and only system claim was allowed which is as follows,
  1. A computing system for determining the complexity of a computer program; said system comprising of a micro processor based central processing unit (4), a hard disk device (5) and a random access memory (6), wherein said memory incorporates
   means for inspecting the program to identify occurrences therein of pre determined program items that are indicative of breaks in the ongoing forward flow of the program;
   means for assigning and recording a pre determined numeric value to each said items; and
   means for summing the assigned numeric values to define a complexity indicative of the complexity of the program.

This indicates that the software related features such as how the software calculates the C.I is not a claimable subject matter but however as per the Indian Patent Act is concerned, the system and what the system or its components does or do for calculating the C.I is claimable subject matter of an invention. However, in view of aforesaid claim 1, as per the present scenario, Indian Patent Office also does not allow such types of computer program product types of system as detailly pointed out in the amended draft manual 2005 that the claims related to "A computer program product in computer readable medium", "A computer readable storage medium having a program recorded thereon", etc are treated as "software per se", irrespective of the medium of its storage and are not held patentable. So, as discussed earlier, only the claims corresponding to a system having a novel constructive hardware features which is embedded with the software to bring out the technical effect; and the claims corresponding to a process or method required to be defined in relation with the particular hardware components to carry out a novel or inventive technical application, rather than a practical application, in solving a technical problem in the prior art are allowed for patent protection in India.

Contributed by : D. Nagarajan - Scientific Officer
Editor in Chief : Roshni Parikh
Designed By : Vikash Singh

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