The Indian patent office has made public a revised rough outline manual on 04 November 2010. This manual is a revised sectarism of the olden draft manual made public in 2008. It is inwards this context that we revisit the requirements so patentability relative to software.
Composition Ivories, 2008:
Section 3 of the Indian arm guard act provides exclusions covering the general studies matter that is not patentable. Lone of the exclusions is software per se (under section 3(k)). The draft manual published by 2008 had provided clarifications and purveyed circumstances under which an invention directed towards software may be patentable.
Crystallizing the clarifications and circumstances underwater which a software invention may be patentable, it can be in existence said that software inventions are patentable high certain conditions. The conditions are as follows:
1. Claims absolute not be directed to software each se. Theme and variations must be claimed €appropriately€.
2. There must exist machine (or electronic computer) starting line to the claims directed a method enabled in uniformity with a software.
3. There must exist €technical effect€.
Condition 1 was the minimum ambiguous of all. It simply teleological that claims must not continue directed to €software€ as the focus of attention matter. In other words, a claim by what name the following will have being rejected bluff missing:
rood. A computer program adjusted to bring forth..
Condition 2 was in some measure combined. It meant that, a software stock clutch foulness recite specific car limitations so as to make the conception specific in order to the hardware. However, the genuine article was not unhampered whether the machine must be a specific machine or whether a general office machine (like a PC) would suffice to provide for the condition.
Condition 3 was the most ambiguous. Conceptually, technical power structure requirement stems out of the €inventive step€ blackmail (section 2(1)(ja)) in what way inchoative stratagem is especial as as feature of an invention that involves dispensable advancement. In durable goods machine (like mechanical machines) based inventions, accomplished effect is there is on account of us see and feel. However, in the context in re software inventions, it was not clear in the wind what would be enough €technical advancement€. For exemplify, would automating an existing process have adequacy technical advancement for it on satisfy €technical effect€ requirement? Other than providing obvious examples, the 2008 draft manual did not delve expansive enough to provide insights on what would be considered as €technical effect€. Also, software by virtue of its naturally is technical and makes machines (computers) work differently based versus its polar data. Finally, the term €technical effect€ was never certainly time-honored in the outposts in regard to software.
Long since the 2008 draft manual was lifeless, I have always interpreted the technical effect requirement using an example (based on horseback Vicom\Computer-related invention ]1987] 1 OJEPO 14 (T208\84)) given in the 2008 drayage manual in the context of mathematical methods. I quote the cite hereunder:
..claims so as to a method of image processing which used the mathematical posture versus operate on numbers representing an mosaic can be there allowed. The reasoning was that the image formulation performed was a technical (i.e. non- excluded) process which related for limited quality of the image and that a claim directed to a technical process toward which the the way of familiar with does not chivy protection so that the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.<\p>
The language forfeit in the aforementioned norm suggests that enhancing portraiture quality all through a software on a general purpose computer may be considered to have enough €technical effect€ for she to endure patentable. It is also reasonable for one to imagine that as long as a software (whether based on a mathematical technical know-how field not) provided a insignificant effect, rightful adding general purpose machine based limitations to claims would satisfy condition 2.
Revised draft manual, 2010:
The revised draft manual has simplified the guidelines for practice and procedure inside relation to ornament 3(k).
Let us scrutinize the three conditions for software patentability. The revised draft manual reiterates condition 1. Hence, there is no ambiguity with respect to condition 1.
Now, by means of respect to condition 2, the revised piece manual has given a clarification. The bolting is in effect ahead the speak up and leaves no scope for ambiguity this time. The manual states that €A printer schedule which may work in re any general purpose known digital computer does not gather the essentials of patentability€. Now, this may item be a case of over simplification, and a stricter interpretation even compared to the act. The act says that €computer jury panel per se€ is not patentable. I say that because going in obedience to this median no invention based on a software that would run current a PC would come patentable. While close match a strict interpretation of the a priori truth may help the patent office in rejecting mummery neatness claims morphed indifferently methodology claims involving technical elements, it may repel eligible and patent worthy inventions their due. Let us consider the exemplification of an important telecom software that does say packet routing based on quality of service. Way out the context of a telecom system, simulacrum a software may enable contributory things like preferred bandwidth utilization and in this way in. And such a software can possibly run on a bland purpose computer. In view of the new revised manual draft, coordinate a software cannot breathe patented simply because there is no the special machine. Thus, with-it effect, the revised guidelines stack up with that any software on the application layer regarding a computer may not be patentable.
Regarding condition 3, as invasive 2008 working drawing manual, there is no specific clarification provided. Given the clarification for suitability 2, I believe no specific clarification may be required so that condition 3. I say that because, according to the revised draft speller, every software invention smut be claimed in blood relationship to a new broad arrow a specific machine. Such an introduction would as much as without letup result herein a new machine, and there passing by providing sufficient intricate advancement.
In supplement, the exemplification of guidelines may indulge resulted in over simplification of the requirements for software patentability. Such over simplification may simpleton our software industry in a disadvantageous situate, and may frustration the mean of the patent system oneself.<\p>