Sunday, May 24, 2009

Patent Protection for Software Solutions

Today technology is changing swiftly. New technical inventions are taking place in huge number. These new inventions will open new disciplines for protection under Intellectual Property Law. India is well known for its software industry, which has grown exponentially in a short period of time. India, like the European Union, does not allow patents for inventions related to software. The relevant provision under the Indian Patents Act (2005) that deals with non patentable subject matter says that a mathematical or business method or computer program per se or algorithms is not patentable (S 3 k).

In 2004 a major amendment was introduced in section 3 through Patent Amendment Ordinance with respect to the patentability of computer programs. The key expressions in the amendments are 'technical application to industry" and "combination with hardware". This means that if an invention is directed at computer software having technical application to industry or coupled to hardware then it is patentable. But this attempt was short lived as the government repealed ordinance through an amendment Act in 2005.

Software has a market value. Computer software is subject to ferocious competition with a shorter life cycle and is liable to be copied soon, as it is "read all on the face" technology. Because of this the owner of a computer program will have two problems; (i) economic problem and (ii) competition. Economic problem means, others can access it without payment to the creator. Competition means the competitors will make competing products based on the creation either by reverse engineering or blatant copying. Apart from protecting the economic interest of the owner, the protection of software through an appropriate IPR mechanism is considered necessary to encourage creativity, innovation and investment. Software may be reproduced at no cost. Therefore, some means of restricting the free copying and redistribution of software work is necessary to protect the investment in a software product.

Stronger protection is needed for software invention in India. There is an urgent need to make the patenting system transparent on an equitable basis and to provide technology specific training to Patent office, in order to cultivate a broad and positive outlook in this area.

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