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An overview of software patents


The concept of "intellectual property" in India has been epic proportions for several reasons in recent years. The primary cause of growing awareness among the Indian population in urban areas is the importance and, more importantly, the protection of the intellectual property rights of trade benefits in India and beyond. Among the traditional principles of intellectual property protection, patent law is the promotion of scientific research, new technology and industrial development. The principle of patent law is that the patent is considered to be only one invention, that is new and useful, the invention must have novelty and utility. The grant of a patent therefore comes from industrial property and is also called intellectual property. And computer software is a relatively new recipient of patent protection.

The term "patent" is derived from the term "Letter Patent". This "leaflet" meant an open letter, and was a huge seal of the King of England under the great seal of the Crown on the big rails where the Crown provided certain rights and privileges to one or more of the kingdoms. The XIX. In the later part of the century, new works, processes, production methods or production methods, machines and materials produced by other manufacturers have been developed and inventors have expressed great interest that inventions they make can not duplicate them by copying or adopting the methods they employ. To save the inventors' interests, the then British rulers adopted the Indian Patent and Design Act of 1911.

It is one of the most heated debates in the patentability of software related inventions. The software has become patentable in most countries in recent years (though in some countries, especially the European Patent Convention or EPC), and software patents have grown rapidly. product-specific "software" does not have a precise definition, and even the software sectors do not give a definite definition. But basically it is used to describe all the different computer programs. Computer programs are basically divided into "application programs" and "operating system programs". Application programs are designed to perform specific tasks to be performed with the computer, and the operating system programs are used to manage the internal functions of the computer to facilitate the application application.

Although the term "Software Abuse" does not have a generally accepted definition. One of the definitions proposed by the Foundation as a free information infrastructure is that a software patent is a patented computer performance computer program.

Richard Stallman, GNU co-developer -Linux Operating System and Free Software Provider, says, "Software patents are patents that contain software ideas and ideas that would be used to develop software.

Software patents apply to patents (including methods) that incorporate or include the software in the essential or at least necessary part of their implementation, that is, the form in which they are put into practice (or used) in order to produce the desired effect [19659002] Software patents:

On September 21, 1962, the British patent application for "Automated systematic linear programming problems" was submitted, memory management of the simplex algorithm and purely software tools The patent was released on August 17, 1966 and appears to be one of the first software patents.


The software is traditionally copyrighted as the code is quite easy to fit into a literary work. Thus, the Software is protected by literary works under the Berne Convention and the writable software is automatically protected by copyright. This will allow the creator to prevent another entity from copying the program and generally do not need to register the code in order to be protected by copyright. While Software Patenting has recently appeared (if only in the United States, Japan, and Europe), where patents give the owner the right to prevent others from using the invention, even if they have been developed independently and have not been copied.

Furthermore, it should be noted that patents cover the underlying methodologies embodied in the software. On the other hand, copyrights prevent direct copying of the software, but do not prevent other authors from being the basis for the underlying methods.

However, issues related to granting software patent rights are much more complicated than copyright issues. More specifically, we encounter two challenges when dealing with software patents. The first is about the tools of the patent and the way the defense is in line with the software industry. The second is the nature of the software and must be patented.

However, questions about granting software patents are more complicated than obtaining copyright. More specifically, we encounter two challenges when dealing with software patents. The first is about the tools of the patent and the way the defense is in line with the software industry. The second is the nature of the software and its patentability

a) Various subjects

Copyright protects all original literary works (including computer programs), dramatic, musical and artistic works, including films. By copyright, protection concerns only the express expression of an accepted concept, not the idea itself. (For example, a program that adds two different computer languages ​​will be considered as two different expressions of an idea.) An independent release of a copyrighted work by a third party would not infringe copyright.

Generally, patents are the "new" and "useful" arts, processes, methods or production methods, machines, devices or other products or materials. Skeptical about Software Patentability Worldwide

(b) Who can rely on patent / copyrights?

Generally, copyright of a literary, artistic, musical or dramatic work is automatically a copyright.

But the patent is awarded for the first, regardless of who first invented the patent. Patents spend a lot of money. They even pay more for lawyers to write down the application than they actually pay. In general, it takes a few years for the application to be considered, even if the patent offices take a very loose job.

(c) Transferring Rights

Copyright gives the owner the exclusive right to copy, perform, adapt, and translate the work. However, these rights are protected by the fair use rights available to the public. "Fair Use" does not violate certain uses of copyright material, such as for scientific purposes, communications engineering, etc. In addition, the independent recreation of works protected by copyright does not constitute an infringement. So if the same code was developed independently by two different companies, then there would be no claim for the other.

The patent provides an absolute monopoly to the owner who has the right to prevent others from making and selling without their consent. In general, patent protection is a much more conservative method of protection than copyright because the protection covers the level of the idea embodied in the software and the additional use of the invention. This would weaken the software as regards the copyright of all European software development, as patents protected by independent patents can be attacked by patents. Many patent applications involve very small and specific algorithms or techniques used in many programs. Often, the "invention" mentioned in the patent application has been formulated independently and is already being used by other programmers when submitting the application.

(d) Duration of Protection

The TRIPS Agreement is for at least 20 years in the product's patent and 15 years in the case of a patent.

For copyright, the contract requires a duration of at least seventy years of author's life

The patentability of software and computer-implemented inventions and case law relating to the interpretation of legal provisions are different under different jurisdictions.

Software patents under multilateral agreements:

o Software patents under the TRIPs Agreement

o Software patents under the European Patent Convention

o Computer programs and Patent Cooperation Treaty

Software Assurance under the TRIPs Agreement [19659002] The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), in particular Article 27, discusses the international legal framework for software patentability and whether software and computer-implemented inventions are to be regarded as technological areas.

Article 27 of the Art. Of the TRIPs Agreement states that patents are available for any invention, whether it is products or processes in all areas of the technology domain, provided they are novel, inventive, and suitable for industrial use. (…) patents and patent rights can enjoy the place of the invention, technology, and whether the products are imported or produced locally, without distinction. "

However, software dispute resolution procedures did not have patentability for computer-implemented business methods and software information technologies as it is the subject of interpretation of the TRIPs Agreement.

Software patents in the European Patent Convention

EPO and other national patent offices have issued a number of patents for software inventions since the EPC came into force at the end of the 1970s, Article 52 EPC excludes "computer programs" from patentability (art. Article 2 (2) as far as a patent application refers to a "computer program" (Article 52 (3)) which has been interpreted as meaning that any invention which reveals no apparent "technical contribution" or "technical problem" it is not obviously patentable even if a computer program is used in the invention.

Computer-implemented inventions that only address a business problem with a computer rather than a technical problem can not be considered patentable since there are no inventive steps. However, the fact that the invention is useful in business does not mean that it is not patentable if it also solves a technical problem.

Computer Programs and Patent Cooperation Treaty

Patent Cooperation Treaty (PCT), which provides a uniform process for patent applications to protect inventions. Patent application filed under PCT is referred to as an international application or a PCT application. International research and preliminary examination under the PCT are carried out by the International Research Authorities (ISA) and the International Preliminary Examining Authority (IPEA).


However, before we begin the new era, making software patents equivalent in India would be worthwhile to pause and examine the patentability of software patents. This can be done by examining examples in which software patents have been placed in the daily order, such as the United States and Japan.

United States

The US Patent and Trademark Office (USPTO) is traditionally not patentable as software patents can only be granted for "processes, machines, manufacturing materials and material compositions". ie "scientific truths" or "mathematical terms" are not patented. The USPTO maintained the view that software is virtually a mathematical algorithm, therefore not patentable, in the 1980s. The position of the USPTO was questioned by the 1981 Supreme Court, Diamond v. Diehr. The case concerned a device that used computer software to provide adequate timing for heating or curing rubber. Though the software was an integral part of the tool, it also had other functions related to real world manipulation. The court then decided that it was a rubber-forming device, a patentable object. The court essentially decided that while the algorithms were not patented, the tools that exploited them, the 1982 United States Congress established a new court, the Federal Circuit, to hear patents. This court allowed patentability of the software and should be treated in the United States in a uniform way. There are some milestones in the court, and in the early 1990s the patentability of the software is well-founded.

In addition, several successful litigation shows that software patents can now be enforced in the United States. This is why patent software is widespread in the United States. From about 2004, around 145,000 patents issued the patented class 22, containing computer-implemented inventions.


The software is patentable in Japan. In many Japanese litigation, software patents have been successfully implemented. In 2005, for example, Matsushita won the court order, which forbade Justsystem for breaching Matsuhita's Japanese patent No. 2,803,236.

Indian Position

As regards computer software, the Patents Act (2002) amended the non-patentable subject of the law as "mathematical method or business method or computer program alone or in algorithms".

However, the most recent amendment (Ordinance, 2004) amended the 1970 Patents Act was promulgated after the Indian President's approval and entered into force on 1 January 2005. In addition to changing pharmaceutical and agrochemicals, one of the fundamental amendments introduced by this regulation is that it allows patents for embedded software to be patented.

Therefore, the modification means that while a math or a business method or an algorithm can be patented, a computer program that can be applied to any industry or incorporated in hardware can be patented. Since all commercial software has industrial application areas and all applications can be interpreted as technical applications, it obviously opens up the software patentability.

In any case, any company that wishes to submit a patent application under the Regulation must ensure that the invention first follows the three basic tests: • Essential

o Novelty

o Usability

so that the software can be protected, not just a new version. In addition, in accordance with the specific requirements of the software patentability regulation, the software must necessarily have a technical application for the industry or be embedded or embedded in the hardware. This prevents future disputes or claims to be made, which is even more probable even after the granting of patents.


India, for its part, seems to have adopted a more conservative approach to the European Union's patenting standards for software. However, the decree is definitely used and relevant in today's India, especially for the growing domestic semiconductor industry. This, along with court satisfaction, definitely assures the rational use of patent protection while enabling the industry to enrich with innovations and inventions, thus alleviating the risk of trivial patents, which stifles life by real innovations and inventions. This is the reason why the patent is always treated as a "double-blade sword", which should be used with caution and sensitivity.

Now that this really is done on a rigid basis (as in the US), and more importantly, the Decree really boosts innovation and inventions in the software industry.

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