Article by Yasharth Tripathi
(Student at National Law University and Judicial Academy, Assam)
In this period of technological development and innovation, the rate of ideas transforming into tangible objects of utility has increased manifolds and Computer Programs are at the cornerstone of it. We may be oblivious to the pervasive nature that computer programs have been in the washing machines we use or the cars we drive. The paramount concern that beholds the stage is the protection of these ideas cum utility. In India, the Computer Programs enjoy dual protection under copyright and patent. However, the prevalence of either one of them is dependent upon the applicant’s choice. Patents are chosen over copyrights by the applicant. However, the law does not provide patent for computer programs to be patented in toto. Just before the end of the decade, a new possibility for patenting software came into being in India. This article sets forth on exploring that possibility.
Copyright vs. Patent
Applicants prefer patents over copyrights, the reason being patent provides them with the exclusive right over the invention and prevents anyone from using it even if no copying was involved. Computer Software is defined under section 2(ffc) and as a literary work under section 2(o) of the Copyright Act, 1957. The definition and category are given to provide the computer program protection similar to that of a literary work. This prevents anyone from copying the source code and the object code of the programme. Despite the protection granted, the functionality of the programme can be copied. For example, there can be two software that can help you chose a cab nearest to you even with different source code and object code. Therefore, applicants prefer patents over copyrights.
On the international forum Article 27.1 of the TRIPS Agreement talks about the patentability of inventions and does not bar computer programmes. Article 10 of the TRIPS Agreement states that a computer program either in source code or object code shall be protected as a literary work under Berne Convention (1971). Thus creating conflicting ideas.
Legislative Stand on Patentability of Computer Programmes.
Section 3(k) of the Patents Act, 1970 reads as the bar of patentability for “a mathematical or business method or a computer program per se or algorithms”. It is to be noticed that section 3(k) does not have an absolute ban on computer programmes per se. Moreover, the term “computer programmes per se” has been an area to ponder upon as it had not been defined. In order to provide a lucid criterion for the patent of computer programs, the government had released the following guidelines to aid the patenting of Computer Related Inventions:
i. Draft Guidelines for Examination of Computer Related Inventions, 2013
ii. Guidelines for Examination of Computer Related Inventions, 2016.
iii. Revised Guidelines for Examination of Computer Related Inventions, 2017.
In a nutshell, these guidelines define “Technical effect” and “Technical Advancement”. Former can be defined as ‘A solution to a technical problem, examples higher speed, better data management strategy etc.’ and the latter one can be defined for the purpose of the guidelines as a ‘contribution to the state of the art in any field of technology’. These guidelines and sections have aided the judiciary in forming a more lucid definition for Computer Related Programmes.
Judicial Stand on Patentability of Computer Programmes
In Accenture Global Service GMBH v. Assistant Controller of Patents & Design and Examiner of Patents, the applicant filed for a patent on the method used to generate a data mapping document. The objection raised said that technical effect was unidentifiable, the applicant submitted that the present claims provide "technical solution to a technical problem of the need for a data document design system and design tools that address one of the most important technical challenges faced by database systems is data migration." After analysis on a technical basis, the patent office concluded that it is not a software per se under section 3(k) and thus patent was granted.
In December of 2019, Delhi High court in the case of Ferid Allani v. Union of India and Ors defined the purpose of section 3(k) of the Patents Act, 1970 and legislative intent behind the addition of clause (k). It stated that ‘Patent Applications would have to be examined on the basis of their technical contribution’ as the pervasive nature of computer programmes cannot be ignored just from the mere reading of section 3 (k) of the Patents Act, 1970. A blanket ban on the patentability of computer programs would be retrograde in the era. Therefore the legislative intent and judicial precedents are to be accounted for in assessing a patent application.
Thus opening a plethora of opportunity of developers to protect their programmes and prosper.
TRIPS and software Patentability
The TRIPS agreement in its Article 27.1 defines that the patent protection is available to all the innovation and the same rights can be exploited by the right holder without any discrimination. The concerned article fails to define innovation however it establishes the criteria for an innovation to be patented. The agreement also lists down the non-patentable objects under Article 27 however software programs are not listed as non-patentable in the article.
Moreover, under Article 10 of the TRIPS agreement software are deemed equivalent to a literary work and hence can be protected under copyright. However, such a categorisation of software is inherently problematic as the nature and functioning of a literary work is very different from a software. The source code is the key to the software, copyright protection to it will only protect the code and not the idea. In layman, terms we can understand it through the example of UBER and OLA as both of these work on different source code and they achieve the same purpose because their idea is not protected under patents.
India has shifted its concern from Large Industries of to Medium and Small Enterprises. In order to protect digital service MSME and provide them with a chance to prosper it is necessary to protect their programmes and idea from the big fishes in the sea of competition. This is where patentability of Computer programmes comes into play.
· The Patents Act, 1970 § 2.
· The Patents Act, 1970 § 3.
· Ferid Allani v. Union of India and Ors, MANU/DE/4323/2019.
· Accenture Global Service GMBH v. Assistant Controller of Patents & Design and Examiner of Patents, MIPR2013 (1)283.
· The Trips Agreement. Art 27§1, Art 10§1.