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Getting Software Patents in India

Grant of Software Patents in India is possible. Patents filed for innovations relating to computer programs, software and mobile applications protect the novel and inventive features of such innovations from being copied by the competitors. Software Patents in India is granted for an embedded software in a mobile application, and/or software plus hardware combination. However, patent law in India does not allow patent protection for software per se, whereby patenting a computer program is prohibited. This provision is stated in Section 3 of the Indian Patents Act, which related to Non-Patentable Inventions.

Why are Abstract Software Patents not available in India?  

When the set of patent claims are written for web based software just stating various method steps and without disclosing what apparatus and/or structural component are carried out by the said steps in that case the invention falls within scope of clause (m) of section (3) of the Patents Act, 1970 (as amended).

There should be structural limitations to the patent claims otherwise the subject matter of these claims is mere scheme and/or mental act and hence falls within scope of clause (m) of section (3) of the Patents Act, 1970 (as amended). Therefore web software invention claimed in said claims is not patentable.

When the patent claims do not define any structural features of the claimed product rather they define computer instructions and logic in that case the instructions and/or logics are nothing but computer program per se. Hence subject matter of said claims falls within scope of clause (k) of section (3) of the Patents Act, 1970 (as amended). Therefore web software invention claimed in said claims is not patentable.

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