Even though the Communication Convergence Bill was not
passed in the current parliament session, the long pending Patents (Second
Amendment) Bill was passed before the session ended.
A view has come up that the Bill makes it possible for
Software to be patented in India by virtue of the amendment.
Before the Bill
was passed the copy of the Bill had listed amongst the non patentable items,
the following.
"a mathematical or business method or a Computer program or
algorithms".
It was obvious that this meant that a Computer program was
not covered under the Patent system.
It appears that the copy of the Bill as passed re states
the same clause thus:
"a
mathematical or business method or a computer program per se or algorithms."
The introduction of the words "Per se" is being interpreted
as an intention of the law makers to make "Computer program" patentable in
some circumstances. According this view,
the addition of the words
"per se" means that a generic computer program using a simple
calculation or algorithm or a business process can not be patented, but if a
software solves a specific technical problem in an innovative way then it can
be patented. (This follows the EU interpretation)
It is difficult
to impute what was the intention of the law makers in adding the word
"Per-se". If software becomes patentable by virtue of this amendment, it
is a welcome development but it cannot be conclusively stated that the amendment
has this effect.
If it was the
intention of the law makers to make software patentable, it is not clear what
was the necessity of bringing the word "Software" at all under the list of
non-patentable items.
Was it to state
that a software invention should not be "obvious" to be patentable?.
....But no such
mention was necessary under this exclusion clause since "Being Non Obvious" is
a general condition applicable for patenting of any invention software or
otherwise.
The only reason
which appears to have prompted the inclusion of the words "Per-se" from
the earlier draft is perhaps to make "Hardware Devices using embedded
software" patentable when the innovativeness may be more in the functionality
of the device which is the property of the software rather than the hardware.
If it was the
intention of the law makers to make software patentable, the mention of the
word software had to be omitted from the list of exclusions. Also it would
have been necessary to make some statement on the status of "Business Method
Patents" falling under the category of "Software".
We need to
therefore wait for more information regarding the amendment before jumping to
the conclusion that software is now patentable in India.
Naavi
May 19, 2002
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