Software and Patents
Every society has been based on communication and every major development in society has been measured by the changes in the means of communication. The most prominent change has been that of the internet, which has further led to the introduction of information technology. The current century has been referred to as the century of technology, and knowledge in the regime of intellect. The ability of the country for translating knowledge into innovation is mainly for the purposes of wealth, which would be determining its future. The innovations have been an asset to the country which has contributed to the economy and wealth. In the current years, there has been cosmic growth in modern economies with respect to information technologies and software. With this advancement of technology, there has been an increase in all the fields of technology, but the most recent has been of software through computer systems. These software systems have been used for managing and controlling the delivery of infrastructure services such as electricity, water, telecommunications, etc. These implemented inventions have been increasingly used in all the fields of technology. In the software industry, the use of patents has become very relevant. The main point of contention that has been raised recently is the patenting of software. The patentability of software has resulted in controversies and has become a contemporary issue.
Software patents have not been defined anywhere in the acts related to Intellectual property rights and have also not been recognized as an area of protection. With respect to India, the country has seen an increase in the business of software every financial year. The software industry has extended its services to various sectors namely healthcare, finance, payment services, administration, and research and development. The information technology industry has reached greater strengths by contributing to the economy, thereby with the increase in GDP. These are the industries that introduce new software daily, for economic development but the situation in India is not healthy as this software is very much prone to piracy. When the software licensing is granted, then it permits the legal use of it, but the problem arises when such software is not licensed and is therefore lost to software piracy. Thus, in order to protect the interests of the software, the domain of intellectual property rights must be enforced for providing them protection against the illegal use of it and is saved from the clutches of piracy.
In comparison with the position of India in terms of patents, then it is necessary to be pointed out that the country has from time and again enforced developments and amendments in the regime so that adequate protection must be provided to every field. For an instance, before 2004, the country received applications related to the patenting of food, drugs, and medicine in the form of mail-box applications, but such were not allowed as they were not precise sections for their protection in the act. However, they were given an allowance, when after 2004, a new area called product patents came into existence, which allowed the patenting of foods and drugs. With this development, there are now concerns being raised on the patenting of software as these would give recognition to the same.
The computer programs and software cannot be patented as there are no provisions for their protection. However, an analysis can be provided with respect to the international perspective and a national perspective of India.
Firstly, Article 2 of the Berne Copyright Convention for Protection of Literary and Artistic Works 1886, shortly known as the Berne Copyright Convention has been recognized as the primary statute, which was adopted for providing protection to the copyright. Article 2 of the convention has included within its ambit the protection related to literary, artistic, and scientific works. This article when analyzed from the point of software programs is liable to be protected under the artistic work under the domain of copyrights. On the other hand, the convention of copyright has also not precisely stated about providing protection to the computer software. The Trips Agreement under Article 7 has enhanced its protection to the technological innovations and inventions, thereby including the protection of computer software too. Article 10 of the Agreement has analyzed briefly the protection of computer software by stating that the programs whether being in source or an object code is liable for protection under the regime of copyright. Therefore, the international conventions have provisions for protecting software under the regime of copyrights.
In India, there have currently been issues related to the patenting of software, as the inventors claim the inventions to be new and innovative and must be protected under the regime of patents. Patents have been considered as the statutory rights which encourage scientific research, new technology and contribute to industrial progress. The products and the innovations and inventions which have been granted the protection of patents, also similarly inhibit the rights of exclusivity. Section 3(k) under Chapter-III of the Patents Act, 1970 has excluded any kind of patenting with respect to computer programs, which actually makes it impossible for granting patents to computer programs. However, the non-granting of patents to computer programs and software is not justifiable in cases where the technology has the essentials of novelty, involves an inventive step, innovativeness, and is beneficial for the industry. Software patents have been categorized as the patents which have been granted on an invention related to software in the computer or any device. The issue of the grant of patents on software has been raised with the purpose of encouraging development in the field of computer technology. The software programs can only be granted patents if they have the fundamentals of innovation, non-obviousness, and utility norms. If the subject matter of software does not comply with these essentials, then the grant of such a patent is not possible.
Henceforth, with the increasing demand for the patenting of software, the various companies in India had filed cases for the same.
In 2016, Telefonaktiebolaget LM Ericsson (Publ) v. Lava International Limited, the court provided an interpretation to Section 3(k) and stated that the section would only hold relevance when the formula is purely theoretical and original in nature or creates any technological or practical effect.
In 2010, in the case of Yahoo v Controller of Patents & Rediffcom India Limited, the company Yahoo had claimed for the patenting of a search software tool. The IPAB did not give its acceptance to the claims of Yahoo stating that software tools that have been classified as business methods cannot be granted patents.
In 2019, the Delhi High Court opined in the case of Ferid Allani v. Union of India & Others, on the interpretation of Section 3(k) by stating that every industry these days are based on the inventions related to computer software and programs, and if computer programs and software are rejected on the basis of following the provisions of Section 3(k), then various inventions which are novel and beneficial would lose the rights of not being patented.
Henceforth, it can be concluded by stating that the software programs have been recognized as intellectual property rights and even have been categorized for providing protection under software. It can be concluded by presenting my opinion that the computer programs and software must be patented as it requires, human skill, labour and incentives.
2 years ago