In this article, we look at protecting the intellectual rights of software, a much-underrated entity although it makes for some of the highest copyright infringements. Computer related inventions can be really tricky. Firstly, you have to describe the invention very cleanly such that it makes sense and that, let me say, is not an easy job, especially when it relates to computers and software – areas not easily comprehensible to laypersons. It is still easy to define the functionality that is required by the customer, and if you have the required coding skills, you can even build a programme that fulfils the desired functionality, but, and there is a big but here, the area that has to be protected by a patent lies somewhere in between. It lies midway between the functionality that is desired and the code that is written to achieve it. This makes defining it all very difficult, especially for those who are new to the area of patenting.
Software Patenting
“How to patent software” is a hot question amongst many tech entrepreneurs in India, and in this day and age, when our country is undergoing a major entrepreneurial boom, we need a convincing answer to that question. To put it in simple words, software can be patented in India but it might not always be permitted.
Where Does India Stand On Patenting Software
In India, there was a clause proposed to include software patents way back in 2005 but the Parliament of India rejected it. A common argument given in this regard is that software patenting form for minor inventions. So, as the argument goes, an invention that can be easily and individually replicated by many others should not be granted since it will only work to decelerate the progress of the field concerned. If you think hard, there is a point there but less so when the country is India, a software giant in its own regard. This is in contrast to countries such as the US, Australia, and even Singapore, which allow the patenting of software innovations within their political boundaries.
Why Does The Indian Patent Office Reject Most Applications?
Section 3(K) of the Indian Patents Act, 1970 reads that “mathematical or business method or a computer programme per se or algorithms” do not fall under the category of items that can be patented in India.
Therefore, keeping the law of our land in mind, the Patent Office duly rejects the majority of the applications even though they may be high on innovation, fortunately or unfortunately.
Is There A Way Around It?
Yes! There is a workaround. If you go through the Manual of Patent Office Practice and Procedure pedantically, it states that not all computer programmes fall under the category which cannot be patented in India. Hence, there are some kinds of software that can indeed be patented in India.
How To Safeguard Your Software In India Then?
The trick is not to patent the software programme. Instead, try to patent the product in which the software plays an integral part, a very integral part, so much so that the software stands out more than the product itself. That way, when you are patenting the product, you invariably provide patent protection to the accompanying software programme too and you do that in the subtlest of ways, playing according to the rules made by the government.
Copyright for Software
In order to protect software in India, this mode of protecting intellectual property is all the more common. What needs to be done then? Simple: register computer software and programmes as works of literature according to Section 2(O) of the Copyright Act, 1957. So, a copyright protection makes more sense for safeguarding software in India. When you are applying for copyright registration at the copyright office, you need to submit the source code along with the duly filled-in application form. Once you have the copyright in your name you are then free to license your software for a price, thereby earning much needed revenue, if needed.
It is necessary to be careful when it comes to software safeguarding. You need to protect the business from legal tangles or get in touch with lawyers who can help you out. These throw completely different challenges when it comes to safeguarding, in comparison to say protecting a piece of art. The latter is much simpler.