[Fsfe-ie] India reverses policy on software patents

Teresa Hackett teresahackett at eircom.net
Tue Mar 29 12:25:21 CEST 2005

Software patents under Ordinance face reversal

Posted online: Tuesday, March 29, 2005 at 0025 hours IST 
NEW DELHI, MARCH 28:  The Patent Office is likely to reverse the
patents granted to embedded software during the period the
Ordinance was in force. While the Patents Ordinance had allowed
such patenting, the Amendment Bill passed in Parliament last week
had dropped the clause that allowed patenting of software-related

Since December 27, 2004, when the Ordinance was promulgated,
letters have been issued to many claimants of software-related
patents, asking them to establish the compliance with the technical
requirements for patenting. 

When contacted, Controller General of Patents and Trademarks S
Chandrasekharan told FE that patenting process for software-related
inventions initiated after December Ordinance would now be reversed.
He was, however, non-committal when asked whether the patents
granted prior to the Ordinance would also be revoked. 

Multinational electronics companies such as LG, Nokia, Siemens,
Philips and Samsung had obtained a spate of Indian patents on
sundry mechanical applications of software. According to sources,
over 150 patents on 'technical effects of software' had been
granted in the country even prior to the December Ordinance. These
patents were granted despite the legal ambiguity that had prevailed
prior to issuance of the Ordinance. 

The Patent Office had interpreted the law leniently in favour of
patent seekers. Not only that, as soon as the Ordinance clarified
that software could be patented if embedded with hardware, the
Patent Office had begun the patenting process afresh for a large
number of such inventions. 

Patents granted to software-enabled inventions include video
imaging systems in mobile telephone handsets, data transmission
systems as well as methods for controlling speeds of devices. 

Legal experts point out that software-related patents already
granted could be successfully challenged in courts, given the
clarification of the law in the recent amendment. Many countries
give patents to software-enabled technical effects, while some like
the US allow even patenting of software per se. 

A large section of the Indian IT software and services industry has
been pitching for patenting of software embedded with hardware
arguing it would help increase commercial value of domestically
developed software and augment exports. The counter argument is
software processes are just mathematic algorithms that do not
qualify as inventions. Left parties had claimed that only foreign
MNCs would benefit from software patents. 

The Patent Office is planning to start a project for comprehensive
search of non-patent literature on inventions. Currently, while
prior art information regarding patent applications and grants is
available under the World Intellectual Property Organisation (WIPO)
mechanism, there is a huge shortcoming about accessing non-patent

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