Competitiveness in business often symbolizes a level of development in business world of any generation. Software industry is truly an exemplary example of such notion. In fact, competitiveness fosters struggle for existence and boosts development and innovation which ultimately results in survival of the fittest. We have all witnessed major breakthroughs in mobile phone technologies during 90’s that literally made mobile phones an integral part of everyone’s life, it became nearly impossible to conduct business or follow daily routine in their absence even for an hour; such change was brought about by the intense competition among several major mobile phone players, such as Nokia, Apple, Sony Ericsson and Samsung, hence we can say competitiveness is synonym of development and innovation.
Intellectual Property Rights play a major role in keeping this competition alive and have resulted in the development of technical field and ultimately overall development of the lifestyle.
There is no legal or conclusive definition for a software patent. A suggested definition of software patent has been proposed by the Foundation for a Free Information Infrastructure (FFII) as being a “patent on any performance of a computer realized by means of a computer program”.
Software is virtual or intangible program, which may be installed as system software or application software. System software is a basic requirement for any computer, as it controls all main functions and integrates all parts into a unitary system, such as an operating system. Application software
serves more application based purposes, such as creating databases and spreadsheets or processing images such as micro soft office.
Software is protected by copyright law and patent law. When does a copyright law protect software and when a patent law does protects software has always been a debatable issue and exposes its dichotomous legal nature. This confusion is mainly due to the coded provisions of the respective laws. However, due to many advantages, industry always prefers patent over copyright but the irony is that the laws generally do not permit patent on software in toto.
“Copyright law protects the specific code a programmer writes, but it does not protect the idea behind that code and it does not prevent it from being recreated with similar functionality with different code by someone else. 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.”
The original expression and computer software is granted protection as a copyright unless it leads to a technical effect and is not a computer program per se. Section 2 (o) defines ‘literary work’ and includes computer programs, tables and compilations including computer databases. The language of any computer program is considered to be an expression of the author and hence comes under the Copyright Law.
A program containing a method for carrying out a new procedure, or representing a better way of carrying out an existing procedure, would be patentable, unless the effect of the procedure was solely within the computer itself or solely due to the expression of language. On this basis, a program for an improved system of manufacturing a product, or performing a new or improved function on any machine would be patentable, unless the function was only performed on the computer itself.
Generally, Patent Law excludes those programs which do not provide a technical solution to a technical problem. A program which simply embodies a theory would be excluded. And a program embodying a mathematical method or a method of doing business or an algorithm too would be excluded, as its only contribution would be in respect of matter within non patentability Section 3(k) of Indian Patent Act, 1970
Patent laws of several countries allow patent protection for software. Such countries include USA, Japan and Singapore, to name a few. However, many other countries, which include India and Europe, have stringent laws concerning patent protection for software innovation. However, it is noteworthy that the computer program in itself is not patentable but computer related inventions are patentable.
In order to obtain a patent in India, an invention must fulfill four criteria:
Novelty
Inventive Step
Industrial Applicability; and Does not fall under patentability exclusion
That is to say that in spite of the subject matter involving a new product or process having an inventive step and capable of industrial application does not qualify for patent if it falls under Section 3(k) of the Indian Patent Act, 1970. However, not all computer related invention fall under section 3(k). Therefore, that computer related inventions which are outside the scope of section 3(k) are patentable in India.
For instance, if the main essence/ contribution/function of the proposed invention lies solely in the computer program, the invention is not patentable as per Section 3(k) of the Patent Act, 1970. However, if the main essence/ contribution/function of the proposed invention lies in both the computer program as well as hardware, the invention will not fall under section 3(k) and be judged by other criteria of patentability.
In general, computer software in combination with a physical device or physical element that is used in processing, operation, or implementation of a function, which is a new, useful, and non-obvious process or product is a patentable subject matter. Few examples are given below which can be patentable within the meaning of patent laws:
When a claimed invention is an obvious process or product and considered as any of (i) to (vi) shown below, the claimed invention is not considered as patentable:
Since software programs are not “tangible” objects, they are not patentable. However, if we are able to convert an intangible software program into a tangible product by combining the software program onto an electronic hardware, it can be patented. Apple’s “Slide to Unlock” is one of the best-known issued software patents in the world. Basically, “Slide to Unlock” is a software program to implement an unlocking user interface. To make a patent application for this software program, Apple combines this software program with iPhone (hardware) and writes a patent application for this iPhone which contains the software program.w
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