Can software related inventions be patented in India?

 

in fact , It's a very complicated problem . Even if you patiently read this article , You'll find that , You still can't answer this question . in any case , The text will be drawn from the Indian patent law 、 The review practice of Indian patent office and the judgment of Indian court are analyzed , To clearly distinguish what is patentable , What is not patentable .     

            

 

• From the perspective of Indian legislation

Let us first clarify the interest relationship from the legislation , Indian patent law in 2002 Because India joined WTO Must conform to TRIPS Standard requirements , Need to be right 1970 A series of amendments were made to the patent law in .“ A computer program ” stay 1999 It was first explicitly mentioned in the second amendment to the patent law in , Mathematics at that time 、 Business methods or computer programs and algorithms are excluded from patent applications . Subsequently, the above text was amended to add itself （ “per se”） Statement of the , The result became the present No 3(k) strip “ Mathematical or business methods or computer programs themselves or algorithms are not patentable ”.

 

According to the interpretation of the legislature ,“ In the new clause 3 (k) in , Inserted ‘ In itself ’ The word" . The reason for this change , Because sometimes computer programs may include other technological inventions . It is patentable to include other technical inventions , however , The computer program itself is not intended to be patented , This amendment is proposed to clarify this purpose .”

 

2004 year 12 month 27 Japan , India has amended the above provisions , The expression in the original clause “ The computer program itself ” It's limited “ Not its application to industrial technology or its combination with hardware ”. On the same day , The Indian government issued a statement , Think of the software itself （ Code ） It can be protected by copyright law . But as technology changes , When software and hardware are combined to produce technical effects in industrial applications , Patent protection should be provided . This is the requirement of Indian Software Association .

 

India's amendment to this clause in a very short time , It seems to be in response to the demands of the Indian Software Association , It is also to quell the anxiety about “ In itself ” A literal argument .

 

“ Combined with hardware ” This phrase seems to be understood better than “ In itself ” It's simpler , But this is not the final conclusion ,12 month 27 How to define the specific boundary of the Japanese amendment clause is still a problem . From a technical point of view , Any computer code is designed to solve practical technical problems , Otherwise there is no point in developing this code , Corresponding , Software code cannot be separated from hardware storage “ Suspended in a vacuum ”. therefore 12 month 27 The revision of the th seems to be a burden , The only significance is that it has caused more controversy .

 

 

In less than half a year , A lot of foreign companies have just made the following decisions 12 month 27 When the amended clause of the th is ready to file a patent application , But it comes from the combination of the above and hardware “ Cumbersome ” The news that the clause was repealed . The Indian legislature wants the Indian software industry to enjoy more freedom of innovation , Instead of being monopolized by a small number of multinational companies holding a large number of patents .

 

    Two 、 The review angle of the Indian Patent Office

For a long time to come , Indian patent law is in a relatively stable state . then , The enforcement of software patents is handed over to the Indian patent office , The Indian patent office was once rated as “ Table tennis expert ”, This evaluation in the Chinese context , Describes the changing policies of the Indian patent office on software patents ,“ Call again and again ”, With the constant appeal of the Indian software industry 、 Lobbying by the Indian legislature 、 Pressure from large foreign enterprises , The Indian Patent Office keeps updating the examination standards for computer related inventions .

 

The Indian patent office has tried to correctly explain the relevant provisions of software related inventions through various guidelines , And try to simplify the patentability standards and examination procedures for software related inventions . To clarify the patentability of Indian software or computer related inventions , The office of the patent office is 2013 year 6 month 28 The guidelines for the examination of computer related inventions issued on the th introduced “new or novel hardware” You can apply for a patent .

 

It's easy for us to see , The provisions of the above guidelines led the Indian patent office to replace the Indian legislature , New rules have been created outside the scope of the existing patent law .

 

2016 year 2 month 19 Japan , The Indian patent office also revised the original guidelines for examination of inventions . This time, the guideline introduces a three-step test index to check the patentability —— This includes correctly identifying actual contributions ; If the contribution is a mathematical or business model or algorithm , Deny the patent application ; Evaluate the contribution of computer programs and hardware prior to other patentability steps .

 

After the issuance of the above guidelines , This has aroused strong dissatisfaction in the Indian software industry .

 

And then , Issued by the Indian patent office 2017 One of the basic features of the guide is the deletion of the recommended test indicators , Delete these “ Test indicators ” Allow the examiner to exercise discretion , Focus on the basics of invention , Not a specific form of protection . The guide text states “ Because patents are granted to inventions in all technical fields , Whether it is product or process , It is important to determine from the nature of the computer related invention claimed , Whether it has a technical nature involving technological progress or has economic significance or both , And not suffer 《 The patent law 》 The first 3 Exclusions under clause ”.

 

2017 The guide also deals with the controversial “per se”（ In itself ） Explained ,“per se” The word should be interpreted according to the general meaning of the dictionary . According to the general dictionary meaning ,“per se” It means “by itself”. According to the subsequent understanding of Indian courts , The computer program itself is not patentable .

 

2019 year 11 month 26 In the text of the review guide effective from the date of ,“ For the purposes of this clause , Please refer to the revised computer related exam guide (CRI),2017 year .”

 

thus , We found that , The review guide is back to 2002 In the patent law of .

 

3、 ... and 、 Judicial review by Indian courts

The Indian courts have commented on various aspects of software patents , The key points are as follows ：

 

The practice of the Indian Patent Office , It seems that we are trying to clarify whether the software itself can be patented , But the real effect is that everyone is confused by the constantly updated review guidelines . And the Indian court's view , The patent applicant “ I can't find the north at all ”. for example , In a case before the Delhi High Court , The court held that not all computer programs were subject to 《 The patent law 》 The first 3(k) The restrictions set forth in article . If the computer program shows “ Technical effect ” or “ technical progress ”, They may be patentable .

 

If we evaluate the practice of the Indian Patent Office , They always try to draw a clear line between right and wrong within the framework of patent law , The above court's view , It seems to directly break through the framework of patent law . There are comments that , The Indian court's view is to balance the Indian software industry in artificial intelligence 、 There is room for innovation in blockchain technology and other digital products .

 

however , Judging from the cases of other courts , The above comments about reserving space for India's software sector seem to have little basis . For example, Delhi high court 2019 According to another judgment in , The court ruled that the patent office was based on 1999 The development of Tunisian citizens since the patent application in Ferid Allani About “ Methods and devices for accessing information sources and services on the network ” Software patent application for . The trial judge held that , If the invention shows “ Technical effect ” or “ Technical contribution ”, Even though it may be based on computer programs , It will also be patentable .

 

In another patent lawsuit about Yahoo in the Indian court , The court said ,“ Claimed invention ’” It's just advertising through electronic means . Even claims of technological advances in existing technology are only improvements in the way business is conducted , and The patent law 3(k) The clause clearly states , Business methods cannot be patented , The fact that there is progress does not change this situation .

 

If the software itself only provides a technical solution （ As mentioned earlier , Any code exists to solve business problems ）, But the software is not superior to the existing technology , The application will be denied . Solve technical problems with innovative technical solutions — The Indian courts' perspective undoubtedly falls on the substance rather than the form of the patent .

 

Understanding of the combination of software and hardware , The Indian courts will act as “ storage medium ” There is a clear distinction between the hardware that generates the physical representation and the hardware that generates the physical representation , stay Ericsson vs. Intex In the case , The Delhi High Court held that only mention was made in the context of various network or hardware elements 、 A program or method used in a device consisting of components, etc , No “ Combined with hardware ”,“ When hardware components use algorithms to generate technical functions , The important review point is whether it leads to actual physical performance .

 

 

 

     In the above analysis , We found that the protection of Indian software patents , about “per se”、“ Combined with hardware ”、“ Three step test index ” And so on . Above software patent legislation 、 In the process of administrative review , What is unique is , It seems that “ Table tennis ” In the process of , There has never been a lack of voice from India's native software industry , Constantly changing 、 During the implementation of seemingly contradictory standards , Consideration of the conflict of interest between the local software industry and multinational corporations has never been lacking .

 

In contrast , Chinese patent examination authorities have long made it clear that solutions involving computer programs do not necessarily include changes to computer hardware . At the same time, for those involved in AI、 New invention patent applications such as big data have given timely responses , Directly negated The claim relates to an abstract algorithm and does not contain any technical features , However, it is required to examine all the contents recorded in the claims as a whole , For the technical means involved 、 Analyze the technical problems solved and the technical effects obtained . For the time being, we are not responsible for AI、 Comment on the latest regulations made by big data , In terms of the timeliness of its response , It is undoubtedly commendable , But in the process , If we look at neural network models 、 Edge of computing 、 Genetic algorithm (ga) 、 Back propagation training 、 Bayes classification algorithm, etc , The earliest research on these algorithms in western countries has a history of several decades , Some Chinese universities can't even find lecturers who can talk about these courses , If we consider the gap between practical applications , Such a quick reaction speed , For China's software industry , Is it a blessing , Yet to be judged by history .