How to Get a Patent in India for Software

Introduction 

Software patents have been generally excluded from the scope of patentability. A ‘software patent’ is a ‘patent on any performance of a computer realized by means of computer program’. Generally Computer Programmes are protected by grant of copyright. Now the international trend is tilting towards recognizing more sophisticated computer programmes as ‘inventions’.  Software has become patentable in recent years in most jurisdictions and the number of software patents has risen rapidly. The recent expansion of the Internet and e-commerce has led to many patents being applied for and granted for business methods implemented in software.

In today’s world we experience a great paradigm shift in technology from the use of Software to Mobile Apps (Applications) to integration with Cloud Computing, which has resulted in the emerging field of IoT, or Internet of Things.

Drafting a Software Patent

Five steps about how to draft patent claims and patent applications for inventions and technologies belonging to the field of SoftwareMobile Apps, Cloud Computing or Internet of Things (IoT) are:

  1. Thoroughly understand the innovation as a problem-solution approach;
  2. Prepare flow diagrams (flowcharts) to cover all aspects of the processes disclosed by the innovation;
  3. Prepare system architecture (block diagrams) illustrating all hardware elements connected via network;
  4. Ensure proper sync between the flowcharts and block diagrams;
  5. Draft patent claims (system or apparatus) covering all elements of block diagrams along with process (method) claims.

Writing Software Patent Application is an art. An experienced patent attorney or patent agent can draft software patent claims that may have broader scope of the invention. However, the purpose of this article is to provide inventors with a general idea how to draft a patent application for a software patent invention.

First and foremost, every software patent specification must be tailored for a particular invention solving one problem in the prior art domain. There is no “one single patent formula to be followed” to write a perfect software patent application. The most important aspect of software patent writing which should be kept in mind while writing the software patent application is the patent claims, which define the legal rights of the patent owner.

It is always advisable to get professional help for writing the software invention and prosecuting the patent application before the patent office. The software inventor should provide flowcharts and/or flow diagrams of different embodiments of the software based intelligent algorithm to the patent attorney.

Conclusion

In India, with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic too or “embedded” in hardware. This is to prevent against any future litigation or claims of infringement being raised, which is a distinct probability even after the grant of patent. 

In a country like India, patenting software is of immense use. Here the I.T. Sector has developed leaps and bounds and at the same time there are classes of people in the society who cannot afford to buy a computer.  

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