An Overview of Software Patenting

The concept of “intellectual property” in India has taken on some epic proportions for several reasons over the last few years. One of the primary reasons, attributable to the growing awareness among the urban Indian population, is the significance and, more importantly, the commercial benefits of protecting its intellectual property rights both within and outside India. And under traditional principles of intellectual property protection, patent law encourages scientific research, new technology, and industrial progress. The fundamental principle of patent law is that the patent is granted only for an invention, i.e., new and useful the said invention must have novelty and utility. The grant of patent thus becomes industrial property and also called intellectual property. And the computer software is a relatively new recipient of patent protection.

The term “Patent” has its origin from the term “Letter Patent”. This expression ‘Letter Patent’ meant open letters and instruments under the Great Seal of King of England addressed by the Crown to all the subjects. The Crown conferred certain rights and privileges on one or more individuals in the kingdom. In the latter part of the 19th century, new inventions in the field of art, process, method or manner of manufacture, machinery, and other substances produced by manufacturers were increased. The inventors became very interested that the inventions done by them should not be infringed by anyone else by copying them or by adopting the methods used by them. To save inventors’ interests, the then British rulers enacted the Indian Patents and Design Act, 1911.

Concerning the patentability of software-related inventions, it is currently one of the most heated areas of debate. The software has become patentable in recent years in most jurisdictions (although with restrictions in certain countries, notably those signatories of the European Patent Convention or EPC), and the number of software patents has risen rapidly.



The term “software” does not have a precise definition, and even the software industries fail to give a specific definition. But it is basically used to describe all of the different types of computer programs. Computer programs are basically divided into “application programs” and “operating system programs.” Application programs are designed to do specific tasks to be executed by the computer. The operating system programs are used to manage the computer’s internal functions to facilitate application programs.

Though the term ‘Software patent’ does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a “patent on any computer program performance realized using a computer program.”

According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents which cover software ideas, ideas which you would use in developing software.

That is, Software patents refer to patents that could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e., the form in which they are put in practice (or used) to produce the effect they intend to provide.

An early example of a software patent:

On 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The invention was concerned with efficient memory management for the simplex algorithm and may be implemented by purely software means. On August 17, 1966, the patent was granted and seemed to be one of the first software patents.


The software has traditionally been protected under copyright law since code fits quite easily into a literary work description. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program, and there is generally no need to register code for it to be copyrighted. At the same time, Software Patenting has recently emerged (if only in the US, Japan, and Europe). Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.

Further, it should be noted that patents cover the underlying methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software but does not prevent other authors from writing their own embodiments of the underlying methodologies.
However, the issues involved in conferring patent rights to the software are a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is the instrument of the patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patent.

However, issues involved in conferring patent rights to the software are more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is the instrument of the patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patent.

a) Different Subject Matters

Copyright protection extends to all original literary works (computer programs), dramatic, musical, and artistic works, including films. Under copyright, protection is given only to the particular expression of an adopted idea and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) Effectively, the independent rendering of a copyrighted work by a third party would not infringe the copyright.

Generally, patents are conferred on any ‘new’ and ‘useful’ art, process, method, or manner of manufacture, machines, appliances, or other articles or substances produced by the manufacturer. Worldwide, the attitude towards the patentability of software has been skeptical.

b) Who may claim the right to a patent /copyright?

Generally, the author of a literary, artistic, musical, or dramatic work automatically becomes the copyright owner.

On the other hand, the patent is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they actually cost to apply. It typically takes some years for the application to get considered, even though patent offices do an extremely sloppy job of considering it.

c) Rights conferred

Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by fair use rights, which are available to the public. Under “fair use,” certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting, etc. Further, an independent recreation of a copyrighted work would not constitute infringement. Thus if two different companies independently developed the same code of code, neither would claim against the other.

A patent confers an absolute monopoly on the owner, which is the right to prevent others from making, using, and offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by software and injuncts ancillary uses of an invention. It would weaken copyright in software based on all European software development because independent creations protected by copyright would be attackable by patents. Many patent applications cover minimal and specific algorithms or techniques used in a wide variety of programs. The “inventions” frequently mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.

d) Duration of protection

The TRIPS agreement mandates a period of at least 20 years of a product patent and 15 years in the case of a process patent.

For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years.


Substantive law regarding the patentability of software and computer-implemented inventions and case law interpreting the legal provisions are different under different jurisdictions.

Software patents under multilateral treaties:

o Software patents under TRIPs Agreement

o Software patents under the European Patent Convention

o Computer programs and the Patent Cooperation Treaty

Software patenting under TRIPs Agreement

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, is subject to debate on the international legal framework for software patentability and on whether software and computer-implemented inventions should be considered as a field of technology.

According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application. (…) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the computer-implemented business methods and software information technology remains uncertain since the TRIPs agreement is subject to interpretation.

Software patents under the European Patent Convention

Within European Union member states, the EPO and other national patent offices have issued many patents for software inventions since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program “as such” (Art. 52(3)). This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if a computer program is used in the invention.

Computer-implemented inventions that only solve a business problem using the computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it solves a technical problem.

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