India has become an IT powerhouse. Lots of Indians are write original code and new software every day, but there’s a question that’s often raised – can software be patented in India?
In this article, we look at protecting the intellectual rights of a software, a much underrated entity although it makes for some of the highest copyright infringements.
Computer related inventions can be really tricky. Firstly, you have to describe the invention very cleanly such that it makes sense and that, let me say, is not an easy job, especially when it relates to computers and software – areas not easily comprehensible to lay men. It is still easy to define the functionality that is required by the customer, and if you have the required coding skills, you can even build a program that fulfills the desired functionality, but – and there is a big but here – the area that has to be protected by a patent lies somewhere in between. It lies midway between the functionality that is desired and the code that is written to achieve it. This makes defining it all very difficult, especially for those who are new to the area of patenting.
“How to patent a software” is a hot question amongst the many tech entrepreneurs in India, and in this day and age, when our country is undergoing a major entrepreneurial boom, we need a convincing answer to that question.
To put it in simple words, a software can be patented in India but it might not always be permitted.
Where does India stand on patenting of software
In India, there was a clause proposed to include software patents way back in 2005 but the honorable Parliament of India rejected it. A common argument given in this regard is that software patenting form for minor inventions. So, as the argument goes, an invention that can be easily and individually replicated by many others should not be granted since it will only work to decelerate the progress of the field concerned.
If you think hard, there is a point there but less so when the country is India, a software giant in its own regard. This is in contrast to countries such as the United States of America, Australia and even Singapore, which allow the patenting of software innovations within their political boundaries.
Why does the Indian Patent Office reject most applications?
Section 3(K) of the Indian Patents Act, 1970 reads that ““mathematical or business method or a computer program per se or algorithms” do not fall under the category of items that can be patented in India. Therefore, keeping the law of our land in mind, the Patent Office duly rejects majority of the applications even though they may be high on innovation, fortunately or unfortunately.
Is there a way around it?
YES. There is a workaround. If you go through the Manual of Patent Office Practice and Procedure pedantically, it states that not all computer programs fall under the category which cannot be patented in India. Hence, there are some kinds of software that can indeed be patented in India.
How to safeguard your software in India then?
The trick is not to patent the software program. Instead, try to patent the product in which the software plays an integral part, rather a very integral part, so much so that the software stands out more than the product itself. That way, when you are patenting the product, you invariably provide patent protection to the accompanying software program too and you do that in the subtlest of ways, playing according to the rules made by the government.
Since we have discussed in detail about patenting, it is only fair that we look at other means of safeguarding intellectual property too, namely copyright and trademark registration. Do not underestimate them by any means in India.
Copyright for Software
In order to protect software in India, this mode of protecting intellectual property is all the more common. What needs to be done then? Simple: register computer software and programs as works of literature according to Section 2(O) of the Copyright Act, 1957. So, a copyright protection makes more sense for safeguarding software in India.
When you are applying for copyright registration at the copyright office, you need to submit the source code along with the duly filled-in application form.
In addition to patenting and copyright registration, trademark registration can also be used to safeguard the brand name of the software.
One software product may have any number of brand names. For example, if a software offers a only one of its kind functionality, say it allows you to “bulk send” pictures, then you can trademark the term “bulk send” so that your competitors are not able to use it. Even if your competitors do come up with a similar feature, they will have to devise their own term which may not be instantly popular and will definitely not be able to feed off the popularity your term has pre-created. So, there is a small win for you.
Trademark registration is often underrated when it comes to protecting a software, be it in India or in lands where a provision for filing patents for software programs exist. If the software or the product name is not trademark registered, the competition can make use of the catchy terms built by you and exploit the lack of patent laws concerning software in India. So, it is necessary to be careful when it comes to software safeguarding. You need to protect the business from legal tangles or get in touch with firms who can help you out. These throw completely different challenges when it comes to safeguarding, in comparison to say protecting a piece of art. The latter is much simpler.
About the Author: Gaurav Bansal is the founder of Registrationwala, an online platform for all types of business registration and management services.