What is the Meaning of Software Patent? – An Overview

A Software Patent is a type of Utility Patent or a property right that safeguards computer programs or any computer performance. These Patents are very controversial also in the US and around the world. Software Patent is distinguished from a Software Copyright. Both safeguard the product, but a Copyright only includes the expression of an idea. For instance, it might consist of the exact written code of a software program. However, they both are a part of Intellectual Property Laws.

As per the United States Law, Software (sometimes lawfully called computer-implemented processes) is a patentable item. But, like any other innovation, the Software must fulfil some criteria.

What is Software?

It is a set of instructions a computing system follows to finish up the task. When a company or any individual sells any Software, buyers get a license to use the Software. Further, they also get some instructions specifying the dos and don’ts for the license. Markets of Software are susceptible to unstated economic loss because of counterfeit, piracy, and imitation. They also face some serious threat of becoming outdated or unnecessary if competitors introduce a more effective product in the future. Hence, companies require protection for their Software under the IPR mechanisms norms. It will protect the owner’s economic interest and encourage innovation as well.

Is Software Patent Allowed in India?

As per the Patent (Amendments) Act, 2002, a computer program has words attached to it, and it cannot be eligible as a Patent. Thus, these cannot be patented in India by themselves; however, they can get such rights if they work in a cycle with something distinct and original. As an outcome, Software becomes patentable when it’s a part of a computer-related invention.

There are also some Rules of Software Patent Registration:

The Patent (Amendments) Act, 2002 regulates the procedure of Patent Registration. This Act came into effect on 20^th May 2003. Following are the elements that are not a part of this Act:

• Any work related to music, art, drama, or aesthetic creation comprising TV productions & cinematography work;
• Topography of integrated circuits;
• Simple rule or scheme for executing mental Acts or a way of playing a computer game.

Getting a Software Patent

• Consider whether you require a Patent: 151 nations are part of the Berne Convention for the Protection of Artistic & Literary Works that means in these nations, Copyright Registration is automatic. When anyone creates or develops Software, then it already has a protection measure. This protection valids for the rest of your life and up to 70 years after your death. However, Patents are more expensive; you must apply for Patent Registration in each nation where you actually want protection. For international protection, you need to submit the Patent application under the Patent Cooperation Treaty.
• Specify your Software: If you want to get a Patent for your Software or a piece of Software, be able to specify or describe the overall design of your invention clearly. With this information, you & your power attorney can get the best protection best for your Software. The application for Patent (Software) requires you to see your invention from different perspectives.
• Do Proper Research: Before commencing the process of Patent registration, you have to do a proper Patent Search. This will help you learn about identical software programs, and it gives you an idea of what is distinctive about your Software. The Patent search also aids you to decide if the effort it takes to get a Patent is worth it. If there are many Patents that cover programs similar to yours, you won’t be able to obtain an extensive protection level. Always remember that Patent Search presents its own expense if you are going to do it correctly. You have to sort through existing Patents & try to decide if the Patents owners would analyse your product as an infringement.
• Work on the Patent Application: A proper Software Patent application has the following parts:
  1. System explanation in which your Software works;
  2. A flowchart that gives an overview of how the Software will work;
  3. More flowcharts that give much information regarding how your Software will reach its objective.
• Depend on your Attorney: Hire an expert who will guide you throughout the Patent application process. Your attorney is beneficial when you are drafting your application. This step is vital because it is very complex to file a Patent application. The claim describes the particular parts of your Software that you desire the Patent to safeguard, which is part of the process.

Problems Associated with Software Patents

1. Although US Laws say that abstract ideas cannot be safeguarded by Patents, this is not the case everywhere.  In places where ideas or thoughts that have business value can be patented, the meaning of an abstract idea is not always obvious.
2. In the global market, there is no broad recognised difference between non-patented Software and patented. For instance, in the EU or European Union, Software cannot receive Patents. However, there has been more discussion of the problem and an attempt to regulate instructions across the European Union^[1].
3. Technical & legal programs can obstruct patentability and innovation.

What is the Validity of Software Patents?

Software Patents remain valid for twenty years from filing. The Patents for Software come under the technology category. The software coding methods are distinctive and vital. Hence, it becomes vital to protect such Software & codes via Patents. Patents are the best way to safeguard the helpful factor of the Software. However, to apply for a Patent Registration, the program should be a technical invention. According to the Patent Act, 2002 (Section 3(k)), all computer programs cannot be patented because they are code lines.

Conclusion

Software Patents are more complex than Patent Registration for other inventions. Therefore, the first step in protecting a Patent for Software would be to seek the guidance of an expert in the field of Patent Registration for Software.

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