This document discusses and compares issues around software patenting in India and the US. It provides background on the meaning and history of software patents, an example of a patented software format (MP3), and issues regarding patentability of software in each country. In India, software per se is not patentable, but software combined with new hardware can be patented if it has an industrial application. In the US, the Supreme Court has ruled that algorithms and mathematical formulas are not patentable, but that software implementing practical applications can be patented.

1. SOFTWARE PATENTING
ISSUES IN INDIA AND
USA
Submitted By
Pranav Suresh
2nd Semester LLM
IPR

2. SUMMARY
o Meaning of Software Patenting
o Who may claim the right to patent?
o History of Software Patenting
o Example for Software Patent
o Software Patentability issues in
India
o Software Patentability issues in
USA
o Conclusion

3. Meaning of Software Patenting
A software patent is a patent that is
provided to enhance computer
performance by means of a
computer application.

4. Who may claim the right to patent?
The patent is granted to the first, to
apply for it, regardless of who the first
to invent it was. Patents cost a lot of
money.

5. History of Software Patenting
 Europe
 US
 INDIA

6. Example for Software Patent
The MP3 format
Several patents were filed in 1987 covering various
techniques and algorithms used in the mp3 format.
In 1992, mp3 became an official part of the MPEG
standard. Thus, mp3 became a popular choice by the
Napster and file-sharing movement in the 90s.
In 1998, Fraunhofer Institute and Thomson Consumer
Electronics asserted patent over mp3 and demanded
royalties.

7. Software Patentability issues in India
 Chapter II of Patents Act 1970 –Inventions not
Patentable S.3(k) :- a mathematical or business
method or a computer program per se or
algorithms.
 Manual of Patent Office Practice and Procedure
(2011)
 Software per se cannot be patented
 Software can be patented in combination with a
new hardware
 In order to be patentable software must have
industrial application.

8. Can we get software patent in India ?
Yes. We can get a patent for a software
invention in India.

9. Software Patentability issues in USA
 U.S Patent and Trademark office
(USPTO) grants patents for softwares.
 Parker v. Flook 437 U.S. 584 (1978)
 Diamond v. Diehr 450 U.S. 175 (1981)

10. Conclusion
In software patents, despite its
announced intent, software patenting
has largely been used to the capitalist
advantage and has run against the free
and open source software principles.