| India like European Union does not allow patents | | | | |
| for inventions related to software. The relevant | | | | To avoid application of Section 3 (k) of the Indian |
| provision under the Indian Patents Act dealing with | | | | Patents act, in the claims few hardware |
| software reads as under: | | | | components must be shown to form the essential |
| CHAPTER II | | | | part of the invention and some form of |
| INVENTIONS NOT PATENTABLE | | | | interdependence should be shown between the |
| 3. What are not inventions.- the following are not | | | | software and hardware components. Further the |
| inventions within the meaning of this act,-- | | | | functions that require algorithm functions e.g. |
| (k) a mathematical or business method or | | | | sensors etc. should be avoided, they can remain a |
| computer programme per se or algorithms; | | | | part of the claim but how these sensors perform |
| Though few years back in 2004-2005 | | | | their function should not be claimed. |
| Government of India brought an ordinance to | | | | |
| make invention related to computer software | | | | Therefore anyone interested in filing a PCT |
| imbedded in hardware like computer, mobile, | | | | application national phase or Convention application |
| televisions etc. and having industrial application | | | | has to more careful at the time of filing basic |
| under the definition of patentable invention by | | | | application. The language of specification as well as |
| amending the clause (k) of section 3 under | | | | claims has to be accordingly modified at the time |
| chapter II of Indian Patent Act, 1970 but under | | | | of filing of original application or else the description |
| fierce opposition such ordinance was not enacted. | | | | must have sufficient support for modification of |
| A careful interpretation and analysis of the | | | | the claims to include hardware components. |
| provision makes it clear that it is computer | | | | Reference numerals for hardware components in |
| programme per se that are not allowed as they | | | | the description as well as claims will also a great |
| are subject matter of copyright in India. The | | | | help in prosecution. |
| reason for not considering the software as | | | | Recently the Indian Patent Office has published a |
| patentable subject matter was to avoid duality of | | | | New Draft Manual Of Patent Practice And |
| protection available to software. But subject | | | | Procedure - Patent Office, India (2008) relating to |
| matter of copyright can be only their literal | | | | the Patent Practice to be followed by the Indian |
| presentation of software which includes coding | | | | Patent office and as per manual shall allow |
| decoding or algorithm form and more precisely it | | | | method claims In software related inventions. |
| is their algorithms form that the Indian Patents | | | | Earlier the Patent office used to object of |
| Act does not consider the patentable subject | | | | method claims only and used to allow only the |
| matter. | | | | device claims that too with hardware components. |