A Software Patent in India is a tricky issue. First of all, let us understand what a Patent is. A patent is essentially a set of rights granted to a person in respect of something new (an invention) created by him. This ‘something new’, under the Indian law i.e. the Patents Act, 1970 is called an ‘invention’ and includes a software as well.
Why get your software patented?
A software patent can grant you two critical advantages: 1. No one else can illegally manufacture, use and sell your software to make money during the period for which the patent is granted. 2. The fact that under the Indian law a patent is granted for a long period of 20 years saves you the trouble of frequent renewals and further expenditure.
How to get a software patented?
Under the Indian law, software is not patentable as a fact because the law while stating what all is not patentable clearly mentions “computer programmes per se”. However, as per the practice that Indian patent office has been following till now, software patents are granted if the subject matter for which patent is being asked is not just a software. It should include some sort of a mechanical device or system to which a software is combined so that the software can produce a functional or technical result and thereby assist in the operation of the device. In other words, if the subject matter of your patent application is merely a computer programme, it cannot be patented.But if it is some tangible device coupled with a software such that in the opinion of the patent office, it appears to be something more than a ‘computer programme per se’, a patent shall be granted. An example of a software patent previously granted is that to Google for generating user information for use in targeted advertising.Further, getting a patent for a software involves a basic procedure of submitting an application with the necessary documents and fees at the concerned Patent office.