Indian Patent manual on software patents

Under this provision, mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions. In relation to computer programs, the law provides a qualification that what is not patentable is only computer program per se.

Claims directed at ‘computer programme products’ are Computer programme per se stored in a computer readable medium and as such are not allowable.

If a claim in a patent application is not directed at a computer programme per se it could be patentable, if all other patentability conditions are met. This provision thus necessitates distinguishing computer programmes per se from other types of inventions that uses or implements computer programmes.

The computer programmes are often claimed in the form of algorithms as method claims or system claims with some ‘means’ indicating the function of flow charts or process steps. The algorithm related claims may be even wider than the computer programme claimed by itself, for a programme represents a particular set, the algorithm expresses the principles generally and gives way for different programmes to be written based on the same algorithm and as such are not patentable.

Essentially, all computer programmes need a combination with some hardware for their functionality. In an application for patent for a new hardware system, the possibility of a computer programme forming part of the claims cannot be ruled out. It has to be carefully considered as to how integrated is the novel hardware with the computer programme. Further, it is also to be considered whether the machine is programme specific or the programme is machine specific. A computer programme which may work on any general purpose known computer does not meet the requirement of patentability.

Method claims, whether independent or dependent, reciting computer programs without process limitations in the form of hardware features are not allowable. For a method reciting computer programme to be patentable, it must clearly recite into it limiting hardware integers that enable the program to function.

Claims directed at computer programs coupled to hardware, enabling the hardware to perform a certain function may be allowable, if such an invention meets all other conditions of patentability.

Vijay kumar M

Demystifying IP Rights…

The term “property” means anything that is associated with some Rights i.e., Right to enjoy, Right to Use, Right to alienate etc.; Examples: Land, Building, Car, etc., some of them movable properties and some immovable; however they are tangible in nature.

There is another type of property called “Intellectual Property” which is intangible in nature however the same has greater importance in the business world. Intellectual property means the idea that its subject matter is the product of the mind or the intellect.  The rights granted on the Intellectual property are called “Intellectual Property Rights”.

  

There are various types of Intellectual Property Rights as follows:-  

     

• Copyrights
• Patents
• Trademarks
• Industrial Designs
• Trade Secrets
• Geographical indications
• Semi-conductor Integrated Circuit Designs
• Plant Varieties and Farmer Rights
• Traditional Knowledge and
• Biodiversity

Each of these rights is given to specific ideas/creations of mind. The laws governing these rights are called Intellectual Property laws. One distinction between general property and intellectual property apart from their intangible nature is that the Rights granted to the Intellectual Property are limited in term and not perpetual.

In this knowledge based economy it is important for us to know about all these rights and ensure that we don’t infringe on the rights of others and protect our rights comprehensively. Like we don’t allow others to trespass/enter into our property without our permission, the intellectual property rights owner does not allow others to exercise rights granted to him/her without his/her permission.

The Central Government (Govt. of India) grants these intellectual property Rights to its citizen on their creative ideas. These rights are granted only when one applies to the Government.

So it is important for Business owners to understand various intellectual property rights and their implications to the business. Let us examine some of these rights.

Let’s start with Copyrights; Copyrights are granted to Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording works. Copyrights are also granted to Computer programs (Software), Databases etc.  Copyright is given to an expression of ideas and not ideas per se, which means an idea expressed in one form is open to others to create several other forms of expression of the same idea. Example: The Epic story of Ramanayana is expressed by several authors right from Valmiki to Ramanand Sagar, each of their expressions is different and is eligible for getting copyright protection separately for their work.  It is an infringement if substantial portion of the work is copied from the original work.  To claim Copyright ownership one must create the work originally and there should be minimum of creativity (Originality and Modicum of creativity). The term of copyright is life time of the author plus sixty years for his/her legal heirs. The commercial exploitation (Reproduction and Distribution Rights) of the works is provided to Copyright owners.

Patents are another form of powerful Intellectual Property rights that are granted to inventions and innovations which are new, useful and non-oblivious. Patents are not granted to abstract ideas, physical Phenomenon and laws of nature.   Once a patent is granted, the inventor/applicant will vest with the Right to make, use, sell, offer for sale and import the product/process invented for a period of 20 years from the date of application. As against popular belief it does not require rocket science or a great invention for a patent to be granted. Any small invention that qualifies new, useful and non-obviousness requirement will be granted a patent. Clips, Post Stick etc, are awarded patent rights. It is important to protect our inventions by filing patent applications, securing our rights and it is equally important to respects others rights by not copying their technology. So to ensure the product released in the market is not infringing patents owned by third parties, it is advised to conduct a thorough analysis of your product before you release it in the market.

Trademarks or Brand Names are the protection given to names or signs adopted for products or services to which they associate to the owners of such Trademarks or Brand names.  Trademarks rights provide the owner an exclusive right to use the mark in relation to the product/services for which it is registered. The rights are provided for a period ten years with an option to renew the same for every ten years thereafter; however the condition is that the mark should be used in the market continuously.

Industrial Designs are provided to aesthetic and ornamental appearances of the products with a term of ten (10) years initially and five (5) Years thereafter on renewal.

Hence its paramount for every entrepreneur to know which intellectual property right is applicable to their product/service and then accordingly take steps in protecting it.

Vijay Kumar M

Article  as published in January edition Vizag Industrial Scan (VIS), an industrial fortnightly