Indian Patent Office Rules on Software Patentability (2001)

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Extracts from the Indian Patent Office's Manual of Patent Practice and Procedure, July 2001.

Note: this text relates to the Indian Patents Act before the Patents (Amendment) Act of 2002, which created an explicit exclusion (Art 3(k)) that a "/computer program per se/" should not be considered an invention. Under the new Patents (Amendment) Ordinance 2004, that clause would be modified to exclude only "/a computer program per se other than its technical application to industry or a combination with hardware/" would be excluded. The limits of what exactly would or would not be patentable under the new wording are not yet fully clear. (wiki discussion).

1.3.8 Computer Programs

1. Computer program is not patentable invention as computer program is a set of instructions for controlling a sequence of operations of a dataprocessing system. It closely resembles a mathematical method. It may be expressed in various forms eg. A series of verbal statements, a flow chart, an algorithm, or other coded form and may be presented in a format suitable for direct entry into a particular computer, or may require transcription into a different format (or computer “language”). It may merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it may be permanently recorded in a control store forming part of a computer. Thus it is evident that a program may be presented in terms of either software or firmware.

2. Since the claims may be couched in terms which tend to obscure the fact that the invention relates to a computer program, it is always essential to analyse them, in the light of what is described and of the prior art, in order to identify the contribution to the art and hence determine whether this advance resides in, or necessarily includes, technological features, or is solely intellectual in its content. For example, if the new feature comprises a set of instructions (program), which may be formulated and presented in any one of a variety of ways, designed to control a known computer to cause it to perform desired operations, the computer being suitable for the purpose without special adoption or modification of its hardware or organization then, no matter whether claimed as “a computer arranged to operate etc” or as “a method of operating a computer etc” .Such a subject matter is not Patentable and hence excluded from patentability . The invention here relates solely to the novel program. The claim might eg stipulate that the instructions were encoded in a particular way on a particular known medium but this would not affect the issue. If however the format of the program, or the nature of the record medium (tape, disc etc.) necessitated some non-standard adaptation to the computer itself (this factor being integral to the invention and not an arbitrary unrelated addition) then the exclusion would not apply. Likewise an invention which related to a particular manner of organizing the overall operation of the Central Processing Unit and the peripheral units, regardless of whether the invention were implemented by means of a program or special hardware facilities, would not be excluded.

3. If the implementation of a new program requires internal modification to a computer of such a nature that it may reasonably be regarded as a new computer then clearly a claim to this computer is not excluded, even though at first sight the invention may seem to relate merely to a program and the purpose of modifying the computer is subsidiary to this. The modification must however be inventive itself; if a computer is modified in a manner which is the obvious way of implementing the program, then the inventive contribution will still reside solely in the program itself.

4. As a general rule a novel solution to a problem relating to the internal operations of a computer, although it may comprise a program or subroutine, will also necessarily involve technological features of the computer hardware or the manner in which it operates and thus, if appropriately claimed, may be patentable.

5. A hardware implementation performing a novel function is excluded only if that particular hardware system is known or is obvious irrespective of the function performed.

6. An invention consists of hardware along with software or computer program in order to perform the function of the hardware, such invention may be considered Patentable.