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India: Patentability of software related inventions clarified

The Indian Patent Office released another revised version (and hopefully the final version) of the guidelines for Examination of Computer Related Inventions (CRIs) in July 2017.

In contrast to the previous position taken by the Patent Office, the guidelines remove the requirement that patentability is contingent on the presence of "novel hardware". There is no requirement to show "contribution" lying in both the computer program as well as the hardware. Nevertheless, the guidelines emphasise substance over form. Claims are to be construed as a whole and if the substance of the claims falls within any excluded category, the subject matter would not be patentable.

Once again marking a departure from current practice, the guidelines emphasise that use of business related terms such as "enterprise", "business", "business rules", "supply-chain", "order", "sales", "transactions", "commerce" or "payment" in the specification or claims alone would not render the invention a non-patentable business method. Once again, a wholesome approach is suggested by the guidelines and where the claimed subject matter involves a specific apparatus or implements a technical process, then the subject matter would have to be examined as a whole.

The guidelines have clarified that mere presence of a mathematical formula in a claim may not necessarily be a "mathematical method" claim. The guidelines further provide that inventions may include mathematical formulae but result in systems implementing technical processes such as encoding, reducing noise in communications/electrical/ electronic systems or encrypting/decrypting electronic communications, which would be patentable and not be treated as mathematical methods.

The present guidelines are not legally binding, but they are expected to reduce inconsistency in decision-making. For a guideline that has been on the drawing board since 2013, they certainly do present a more open-minded approach to computer-related inventions.

R Parthasarathy

Lakshmi Kumaran & Sridharan
B6/10 Safdarjung Enclave
New Delhi 110029, India
Tel: +91 11 41299800
Fax:91 11 41299899



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