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Time-line of Software Patent Law in India

by SFLC.in

June 25, 2002: Section 3(k) introduced in the Patents Act,1970. Excludes mathematical, business methods, computer program per se or algorithms from patent protection.

December 26, 2004: Patent (Amendment) Ordinance 2004 amends Section 3(k) to extend patentability to “Computer programmes having technical application to industry or in combination with hardware”

January 1, 2005: 2004 Ordinance comes into force.

March 18, 2005: Patent (Amendment) Bill 2005 introduced in Lok Sabha still intact with the 2004 Ordinance amendment.

March 22, 2005: Press release by Ministry of Commerce proposes to omit the changes introduced by the 2004 Ordinance for the reason that these may give rise to monopoly of multinationals.

March 23, 2005: Opposition raised in Parliament to amendment proposed by Patent (Amendment) Bill 2005 to Section 3(k), as it was feared that the amendment would give rise to monopolies by multinationals.

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April 4, 2005: The Patents (Amendment) Act, 2005 repeals the 2004 Ordinance. Patents Act 1970 restored to its original form.

March 2008: ‘Draft Manual of Patent Practice and Procedure’ released by the Indian Patent Office(IPO). States “Claims directed to technical process, which is carried out under the control of a computer programme (whether by hardware or software) cannot be regarded as relating to computer programmes as such….Claims relating to software programme products are nothing but computer programmes per se simply expressed on computer readable medium and not allowable.”

October 24 2008: Report of the Parliamentary Standing Committee on Commerce presented before Rajya Sabha emphasizes the need to clearly define the words ‘per se’ in Section 3(k).

November 2010: Revised Draft Manual of Patent Office Practice and Procedure published by IPO. States ‘Mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions’.

March 22, 2011: Modified ‘Manual of Patent Office Practice & Procedure’ released by IPO. States “Mathematical methods, business methods and algorithms claimed in any form, are not patentable….If the claims, inter alia, contain subject matter which is not computer programme, it is to be examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of invention.”

June 28, 2013: Draft Guidelines for Computer Related Inventions 2013 released by IPO. New term i.e. technical effect introduced in the Draft Guidelines with the purpose to explain ‘technical advancement’ under the Patents Act 1970. Draft Guidelines clarify that business methods, mathematical methods and algorithms cannot be patented irrespective of language used. Comments invited on the draft guidelines.

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October 11, 2013: Stakeholder Consultation organized by IPO.

December 19, 2014: Draft of National IPR Policy released for public consultation. Proposes to “engage actively in negotiation of international treaties and agreements; to examine accession to some multi-lateral treaties which are in India’s interest; and, become signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process.”

August 21, 2015: Guidelines for Examination of Computer Related Inventions released by IPO. Provide that:
– Mere use of mathematical formula in a claim to clearly specify the scope of protection being sought would not render the claim a mathematical method. Eg. Method of encoding, decoding, encryption
– While business methods are non-patentable, if the claimed matter specifies an apparatus or technical process for carrying out invention even in part, the claims to be examined as whole
– So long as a computer programme is not claimed in itself, but in a manner so as to establish industrial applicability and fulfils all other criteria of patentability, the patent should not be denied.

Also read: Issues with the “Guidelines for Examination of Computer Related Inventions”

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