Software Patents In India And Their Registrability

Patent Law of India is well established. For a considerable long period of time it was primarily based upon Indian Socio Economic conditions. With the signing of Trade Related Intellectual Property Rights (TRIPS) Agreement, Indian Patent Act, 1970 was also amended accordingly. One major change was allowing Product Patents for Patentable Pharmaceuticals in India.

After India signed the TRIPS Agreement, an Ordinance to bring necessary changes in the Patent Law of India was passed. The Ordinance also incorporated a provision that allowed granting of Software related Patents. In fact, on the basis of such Ordinance, many Software related Patents were granted by the Patent Office of India.

While the Patents Ordinance had allowed such Patenting, the final Patent Amendment Bill passed in Parliament of India in this regard dropped the clause that allowed Patenting of Software-related inventions. So as on date, granting of Patent for Software per se is not allowed in India.

However, this has not deterred the Software patent Trolls in India from claiming Patent Rights in the same. This is happening because there is a general lack of awareness about Patent Trolls and their Regulations in India. Thankfully, the mainstream press is turning against such Software Patents and their Trolling exercises.

India is not granting any Software Patent per se as per its Laws and any person or institution claming the same is not entitled to any such protection in India. Any Software Patent infringement claim must be thoroughly analysed and fiercely fought against at all appropriate forums in India.

Patent Trolls And Their Regulation In India

Patent Trolls are increasingly becoming a nuisance world over. Patent Troll is a negative term that is used in the context of a person or company that enforces its Patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic.

Patent Trolls usually have no intention to manufacture or market the patented invention and their sole purpose is to make some quick money through cease and desist orders and Patents infringement litigations. Now even in India this practice has begun to surface.

Patent Trolls frequently explore Information and Communication Technology (ICT) related fields though other fields are also covered. This is the main reason why many Software Developers have decided to leave US unless the US Patent Laws are modified suitably to immune them from Patent Trolls.

Patent Trolls are flourishing due to “Very Liberal Patent Regimes” like the US Patents System. These Patent Systems grant Patents in a very “Wide and Liberal Manner” that gives lot of leverage to Patent Trolls to harass others. Since legal fees for litigation is reasonably high, most of the Companies or Individuals prefer to settle the case out of the Court.

Many activists have been raising their voices against the granting of Patent for Software that is the main reason for flourishing of “Software Patent Trolls”. The way Software Patents are allowed in the “Most Liberal Manner”, it is also hindering “Innovation” in this regard.

The Indian Patents Act, 1970 does not grant a Patent for Software Per Se but India extends a Copyright Protection to Software under the Indian Copyright Act, 1957. So the nuisance of Patent Trolls in the field of Software is not troublesome as even if a cease and desist order or litigation is started in India, not much benefit would be derived out of the same.

Similarly, Indian Patents Act 1970 “Prohibits” Unfair Trade Practices of Hoarding a Patent by not using the same and hindering its availability to general public. If a cease and desist order is issued in respect of such a “Hoarded Patent”, the very grant of Patent can be challenged. This is sufficient “Deterrent” for Patent Trolls operating in India.

It seems Indian Patent Law is better formulated for Software Developers and those harassed by Patent Trolls. If you are a Software developer or an SME Innovator, it is a better idea to shift your work to India to get maximum commercial benefits.