Patent Application India

Both India and the European Union does not allow patents for software-related inventions. The relevant provision under the Indian Patent Act dealing with software reads as under:

CHAPTER II

INVENTIONS not patentable

3. What are not inventions .- The following are not inventions within the meaning of this Act, -

(K) a mathematical method or a company or a computer program per se or algorithms;

Although a few years in 2004-2005 Government of India has an order for invention relating to software embedded in hardware such as computers, mobile, television and have industrial application in the definition of invention patentable by amending clause (k) of Section 3 of Chapter II of the Act Indian Patent, 1970, but under the fierce opposition of these orders has not been adopted.

An interpretation and analysis of the provision, it is clear that the computer program that are not allowed because they are subject to copyright in India. The reason for not considering the software as patentable subject matter is to avoid the duality of the protection afforded to software. But the object of copyright can not be that literal presentation software that includes the encoding or decoding algorithm, shape and more precisely it is the form of algorithms that the Indian patent law does not consider the patentable subject matter.

To avoid the application of Article 3 (k) of the Indian Patents Act, the claims some hardware components must be shown to form the basic invention and some form of interdependence must be made between software components and hardware. In addition to functions that require such functions algorithm, sensors, etc. must be avoided, they can remain a part of the claim, but how these sensors perform their function should not be claimed.

Therefore, any person interested in filing a PCT national phase application or agreement is more carefully at the time of filing the basic application. The LSP and claims must be amended accordingly at the time of filing the initial application, or the description must be sufficient support for amending the claims to include hardware. reference figures for hardware components in the description and the claims will also be of great help in the pursuit.

Recently the Indian Patent Office has published a new draft manual of procedures and practices of patent - Patent Office, India (2008) on patent practice to be followed by the IPO patents and per the manual should allow method claims in the software-related inventions. Earlier, the patent office used to be the claims and the only method used to allow the claims system with hardware too.