patent protection for software IN INDIA
INTRODUCTION
Patentability of software inventions are very controversial in those days. In the early 1960s and 1970s uniform response was that software is not patentable subject matter. But in the years following the United States and Japan expanded the scope of patent protection. But some countries, including Europe and India are reluctant to grant patents for computer program for the fear that technological progress in this volatile industry hindered. Proponents of software patents argue that the patent, and would have to more innovation in the software industry. Opponents argue that software patents will stifle innovation, because the characteristics of the software are basically from those of the old industrial innovations, such as machinery and civil engineering.
For software innovations
WIPO's definition, computer program, such as: "A set of instructions capable, when in a machine readable form, to a machine with information processing capabilities to indicate, or lead to a particular function, task and result." Software can be protected either by copyright or patent or both. Patent protection for software has advantages and disadvantages in comparison to the copyright protection. There have been many discussions about patent protection for software as information technology develops and more software has been developed. This resulted primarily on the characteristics of the software, which is intangible and has a great value. It takes a tremendous amount of resources for the development of new and useful programs, but they are easily copied and easily via the Internet throughout the world. Also on the development of e-commerce, it is urgent for the patenting of business methods.
Computer programs are also intangible they actually used. This intangibility causes difficulties in understanding how a computer program may constitute a patentable subject matter. The questions of whether and to what extent computer programs are patentable remains unresolved.
More than half of the 176 countries in the world, the patents that the patenting of software inventions, at least to some degree. There is a worldwide trend in favor of the adoption of patent protection for software inventions. This trend accelerated after the adoption in 1994 of the TRIPS Agreement, which mandates countries, patent protection for inventions in all fields of technology, but stops short of mandatory patent protection for software as such. The developing countries that are not such protection when the TRIPS Agreement came into force (1 January, 1995) have until 1 January 2005, to amend their laws if it is necessary to meet this requirement.
European Patent Convention
The European Patent Convention is a treaty that the European Patent Office (EPO). The EPO grants patents that are valid in these countries, which in the EPO application was perfected and subsequently in those countries. The enforcement of the EPO patent is limited by the national courts of each country.
The software is copyrighted and not by patent protection in Europe. Under Article 52 (1) of the European Patent Convention (EPC), European patents for inventions, which is industrially applicable, which are new and involve an inventive step. Article 52 (2) includes plans, rules and methods for performing mental acts, playing games or doing business, and computer programming from patentability. Article 52 (3) says that the ban applies only to the software "as such".
For some years after the implementation of the EPC, software was not patentable in isolation. In order to be patentable, the invention in such a combination to lie in the hardware. Then came a test case, EPA T26/86, a question of the patentability of a hardware and software, the hardware itself was not new. It was patent for a computer-control X-ray machine programmed the machine to the operating system for X-ray procedures of the various species. The Patent Office denied the patent the invention. Technical Board of Appeal (TBoA) disagreed and confirmed the patent, saying that a patent invention could consist of technical and non-technical features (ie, hardware and software). It was not necessary, the relative weights to these various types of function.
Recent cases
1.VICOM CASE
The case VICOM authority, which means "computer program as such" and what is a "mathematical method". The patent application for a method and apparatus for digital image processing, with a mathematical calculation on the number of the points of an image. Algorithms were used for smoothing or sharpening the contrast between adjacent data elements in the field. The Board noted that a computer using a program to carry out a technical process is not entitled to a computer program as such.
2. IBM cases
Subsequent important development in 1999, when cases T935/97 and T1173/97 have decided to appeal TBOA. In these cases, the TBOA ruled that software is not as "software as such" if it gets a technical effect, claiming that software per se, could be acceptable if these criteria are met. A technical effect may result from an improvement in computer performance, or the properties or use of facilities such as a computer system with limited access memories excitation due to better access the computer programming. Decisions T935/97 and T1173/97 were elsewhere in Europe.
The European Technical Board of Appeal of the EPO rendered two important decisions concerning the patentability of business method inventions (BMIs). Business Methods inventions can be defined as inventions that deal with methods or systems of business, with computers or the Internet.
3. The Queuing System / Petterson case
In this case, a system for determining the order in the queue at customer service centers plural was to be patentable. The Technical Board of Appeal that the problem will be solved, the means of interaction between the components of the system, and that there was a technical problem, whose solution has been patented.
Sohei CASE
Sohei The case opens up a way for a business method to be patentable. The patent was a computerized system for plural forms, including independent financial and inventory management, and a method for operating the scheme. The court said it was patentable because "technical considerations were" and "technical problems have been solved." Thus, the Technical Board of the invention as to be patentable, it was a way of dealing with the business.
The most widely followed doctrine on the scope of patent protection for software inventions is the "technical effects" doctrine announced that for the first time by the European Patent Office (EPO). This doctrine of the rule, that software is patentable if the application of the software is a "technical effect". The EPA law on the patentability of software rather than the individual liberal laws of some of the EPO member states. Thus, a desire, a software patent invention in Europe should normally file an EPO application.
INDIAN Patent Law
As in Europe, in India, the doctrine of "technical effects" defines the scope of patent protection for software inventions. The Patent Act of 1970, as amended by the Act of 38 by 2002, excludes the patentability of software in itself. Section 3 (k) of the Patent Law "a mathematical or business method or a computer program or algorithm per se is not patentable. The computer program products, referred to as "A computer program product in computer-readable medium", "A computer-readable medium with a program recorded on", etc. are not patentable for the claims will be treated as related to software per se, irrespective of the medium of its storage. On the other hand, a content display method for displaying content on a screen, a method for controlling an information processing devices for communication over the Internet with an external device, a method for transmitting data through an open communication via a wireless device that selectively opens and closes a communication channel to a wireless network and any mobile device with a computer platform and a variety of resources, the device selectively uses a communication channel for communicating with other devices in the network "are patentable if all the above methods to use computer programs to operate. Computer program, but only in the context of the intellectual are not patentable.
CONCLUSION
In India, software per se is not patentable. The inventions in connection with the use of the computer program or software is patentable under the Indian Patent Act of 1970, if claimed, in a combination of hardware and software components of a computer, a "technical progress" on the state of the art. It is necessary that the applicant, to the "technical contribution" to the state of the art when the invention of the software. The technical problem that must be solved by the invention should be sufficiently described as the hardware is supported by the software to the previously described problem. The "technical character" of the invention should be placed clearly in the claims.
VRGOPU MA, LL.M (USA), advocate of PMG ASSOCIATES, Patent and Trademark Attorneys, India by http://www.pmgip.com
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