In August 2015, the Indian Patent Office clarified the Indian Patents Act provision relating to computer related inventions (CRIs), providing patent practioners with much needed guidance and examples of patentable/non-patentable CRI claims.
A copy of the guidelines can be downloaded here:
Section 3(k) of the Indian Patents Act relates to CRIs and states that “a mathematical or business method or a computer programme per se or algorithms” is not patentable. Some guidance has been provided for the interpretation of Section 3(k), namely:
“For being considered patentable, the subject matter should involve either
- a novel hardware, or
- a novel hardware with a novel computer programme, or
- a novel computer programme with a known hardware, which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.
A computer program, when running on or loaded into a computer, going beyond the “normal” physical interactions between the software and the hardware on which it is run, and is capable of bringing further technical effect may not be considered as exclusion under these provisions.”
The guidelines also provided some indicators to determine technical advancement of CRIs. In particular, if the answer to any of the questions below is in the affirmative, the CRI may not be considered excluded under Section 3(k):
- whether the claimed technical feature has a technical contribution on a process which is carried on outside the computer;
- whether the claimed technical feature operates at the level of the architecture of the computer;
- whether the technical contribution is by way of change in the hardware or the functionality of hardware;
- whether the claimed technical contribution results in the computer being made to operate in a new way;
- in case of a computer programme linked with hardware, whether the programme makes the computer a better computer in the sense of running more efficiently and effectively as a computer; and
- whether the change in the hardware or the functionality of hardware amounts to technical advancement.
We believe that these guidelines will be useful to applicants and patent practioners alike. Using the guidelines, applicants can review their CRIs when deciding whether to file a patent application in India. Patent practioners can adhere to the guidelines when preparing and prosecuting patent applications.
As a whole, the guidelines appear to indicate that the Indian Patent Office has taken a more favorable approach to the allowability of CRIs compared to the past.