The document discusses software patents in India. It provides an overview of intellectual property protection for software, including copyright and patents. While copyright protects the literal elements, patents provide broader protection for ideas and functionality. In India, software patents are allowed as long as they are not a "computer program per se". The interpretation of this clause has varied, with some claims being granted patents while similar claims being rejected. Overall, the legal framework for software patents in India remains ambiguous.

1. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
By
Aadil Currimbhoy
Software Patents in India

2. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
SOFTWARE AND INTELLECTUAL
PROPERTY PROTECTION
• Intellectual property protection laws that relate to
software have been described as a legal quagmire.
• Section 2(ffc) of Indian Copyright Act 1957 defines
‘computer programme’ as a set of instructions
expressed in words codes schemes or in any other
form including a machine readable medium capable
of causing a computer to perform a particular task
or achieve a particular result.
• In simple language, software may be understood to
be the non-physical aspect of a computer.
• Software is generally protected by three different
forms of intellectual property protection:
copyright, patenting, and trade secrets.

3. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
COPYRIGHT AND SOFTWARE
• Traditionally, copyright was what was most
commonly employed to protect software.
• In April 1994, TRIPS Agreement ratified that
computer programmes should be protected as
literary works under of the Berne Convention.
• Copyright protects the literary aspect of software
and is essential in the efforts against piracy in the
industry.
• In India, what evidence we have to look at shows
that the ‘look and feel’ test foremost is most
employed and has been employed in a number of
cases including R.G Anand v. M/S. Delux Films.

4. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Apple Computer, Inc. vs. Microsoft
Corporation
• Apple Computer, Inc. (now Apple Inc.) sought
to prevent Microsoft and Hewlett-Packard from
using visual graphical user interface (GUI)
elements that were similar to those in Apple's
Lisa and Macintosh operating systems.
• The court ruled that, "Apple cannot get patent-
like protection for the idea of a graphical user
interface, or the idea of a desktop metaphor
[under copyright law]...".
• This case quite clearly brings out the essential
flaw in protection though copyright.

5. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com

6. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
PATENTS AND SOFTWARE
• Considering the industry’s phenomenal growth
into $407.3 billion industry in 2013, it is only
natural that innovators in the software industry
desired protection beyond copyright.
• Patenting mends the chink in the copyright armor:
protection of the idea.
• A good example to illustrate the broader, more
comprehensive degree of protection offered by
patents is Amazon’s controversial 1-Click buy
patent.
• Another good illustration is the outcome of the
Apple v. Samsung case when compared to Apple v.
Microsoft.

7. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
Apple Inc. v. Samsung Electronics Co.
• Apple accused Samsung of infringing on three utility
patents and four design patents.
• At the heart of the dispute is Design Patent 504,889.
The patent consists of a one-sentence claim about the
ornamental design of an electronic device,
accompanied by nine figures depicting a thin
rectangular cuboid with rounded corners.
• Apple succeeded to a large degree against Samsung in
the United States; where Apple v. Microsoft was heard.
• The higher degree of patent protection is quite well
depicted in this case as elements which seemed less
significant than those argued in Apple v. Microsoft
were ruled in Apple’s favour.

8. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com

9. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
PATENT PROTECTION IN INDIA
• Patent protection of software in India is commonly
discussed to be too narrow and offering too little
scope for software protection.
• Patents are a rarity. However, the commonly made
statement that they are not permitted by law,
however, is a fallacy.
• Upon reading the disqualification clause i.e.,
section 3(k) of the Indian Patents Act, 1970, the
disqualification phrase reads ‘computer programme
per se’: a conditional disqualification rather than an
absolute one.

10. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
HISTORY OF SECTION 3(k)
• After the 2002 Amendment to the Indian Patents Act, section
3(k) was inserted to exclude software from the definition of
‘invention’.
• Section 3(k) of the Indian Patent Act, 1970 reads:
“a mathematical or business method or a computer
programme per se or algorithms”
• The Joint Committee Report provided reasoning behind the
‘per se’ appendage: “This change has been proposed because
sometimes the computer programme may include certain other
things, ancillary thereto or developed thereon. The intention
here is not to reject them for grant of patent if they are
inventions. However, the computer programmes as such are not
intended to be granted patent”.
• A 2004 ordinance divided section 3(k) into section 3(k) and
section 3(ka) but it was later rejected by parliament.

11. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
AN ANALYSIS
• In a patent application filed by Qualcomm Inc.
titled “Reverse Link Power Control for an OFDMA
System” was rejected by the Mumbai Patent
Office.
• Stated that the claims were
– mere software implementations;
– merely computer programmes per se,
– for being related to mere scheme as no hardware
component defined to carry out the claimed method steps.
• However, in a similar claim made by Qualcomm
titled “A Method for Encoding Video Data and
Audio Data by an Encoder Device” was granted.

12. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com

13. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• The rejection of the 2004 ordinance
– The 2004 ordinance divided section 3(k) into
section 3(k) and section 3(ka).
– Section 3(k) was worded as follows:
“a computer programme per se other than its technical
application to industry or a combination with hardware.”
– Rejection of the ordinance indicates the
legislature’s dissent thereof. It can be understood
that the intention of the legislature is not that
‘computer programmes per se’ merely indicates
computer programmes without technical
application to industry or without essential
hardware.
WHAT SOFTWARE TRANSCENDS
THE ‘PER SE’ BARRIER?

14. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• The Draft Manual of Patent Practice and
Procedure
– The crux of the guidelines was that: first, an invention
must be examined as to whether they are mathematical
methods, business methods or algorithms as defined in
the manual, and disqualified if they are. Then it must be
tested if it is a ‘computer programme per se’ as defined
below.
– “If the claimed subject matter in a patent application is
only a computer programme, it is considered as a
computer programme per se and hence not patentable…
Even if the claims, inter alia, contain a subject matter
which is not a computer programme, it is examined
whether such subject matter is sufficiently disclosed in
the specification and forms an essential part of the
invention”

15. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Draft Guidelines for Examination of Computer
Related Inventions
– Does not clarify, in their definition clause, what qualifies
as computer programmes ‘per se’. It merely states that
the Oxford Advanced Learners Dictionary defines “per
se” as: “‘by itself’ - to show that you are referring to
something on its own, rather than in connection with
other things”.
– The manual also makes an effort to provide a definition
for the ‘technical effect’ but fails to mention its
importance.
– Only provides negative illustrations showing what is
not an invention, not what is.
– Not legally binding

16. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
THE MISGIVINGS OF PATENTING
SOFTWARE
• The software industry, particularly in the United
States, but not exclusively, seems to be plagued
with patents that are too wide in their scope.
– Apple’s patent titled ‘Method for providing human
input to a computer’: Seems to cover everything from
multi-touch input to optical input.
– Amazon titled ‘Method and system for placing a
purchase order via a communications network’: One
click buy patent.
• The number of software patents and the wide
scope thereof pose threats to innovation.
– Fear of infringing a patent that is broad enough to
encompass their innovation.

17. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Widely believed to promote patent trolls and
wasteful patent infringement suits between the
leaders in the industry.
– Rotatable Technologies
• Development in software is sequential i.e., one
invention forms a base for another.

18. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
THE IMPACT OF FOREIGN
PATENT APPROACHES
• Countries with a more liberal approach to patents
could restrict entry of companies from countries
with more restrictive approaches.
• To illustrate, if a software technology is developed
and manufactured in India, and a patent was not
allowed to be filed, a competitive company in, for
example, the United States could file a patent and
then demand royalty if the Indian company
decides to proceed with sales in the United States.

19. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
CONCLUSION
• Lack of a definite position leaves open the
opportunity to establish a position that is educated
from the flaws of other systems.
• Liberal as well as a restrictive approach to
software patents seem to have their own share of
disadvantages.
• However, the present situation of uncertainty
leaves the system open to the negative effects of
both options and more.
• Software companies of the world pursue
applications through priority while the domestic
industry lives in the false perception of the
illegality of software patenting in the country.

20. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Confining software to the realm of copyright,
however, is misled.
• While writing literature may be compared to
composing a melody or producing artwork; writing
code is closer to assembling a virtual machine
that performs actions.
• Software must be understood to be virtual
machinery and hence viable inventions.

21. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Software patents must be granted in a manner that
confines the patent to its invention and due
importance must be given to the basic
requirements of patenting: practical utility,
novelty, and non-obviousness.