ndia's New Patent Guidelines Declare Software And Business Methods Clearly Patentable For The First Time

Techdirt|Glyn Moody

At a time when software patents seem to be on the retreat in the US, India has perversely decided to move in the other direction, as reported here by The Economic Times:

The patent office for the first time made a clear interpretation of the Patents (Amendment) Act, 2002 to mean that if a software has novelty, is inventive or tangible, and has proper technical effect or industrial application, it can be patented. The guidelines serve as a reference for officers in granting patents.

India's patent law has not changed, which means that the following exclusions from patentability, found in The Patents (Amendment) Act 2002, are still relevant:

k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;

These are very similar to the exclusions listed in Article 52 of the European Patent Convention (EPC), which governs patent law in Europe. And where the EPC uses the phrase "as such" when it comes to computer programs, the India exclusions contain the equivalent phrase "computer programme per se". As Techdirt readers know, the inclusion of "as such" as a qualifier to the exclusion of computer programs from patentability has opened up a huge loophole through which clever lawyers have driven many thousands of software patents. The fear -- quite justified -- is that exactly the same will happen in India because of the new guidelines' interpretation of what that "per se" phrase means (pdf):

The JPC [Joint Parliamentary Committee] report holds that the computer programmes as such are not intended to be granted patent. It uses the phrase "... certain other things, ancillary thereto or developed thereon.....". The term "ancillary" indicates something essential to give effect to the main subject. In respect of CRIs [Computer Related Inventions], the term "ancillary thereto" would mean the "things" which are essential to give effect to the computer programme. The clause "developed thereon" in the JPC report may be understood as any improvement or technical advancement achieved by such development. Therefore, if a computer programme is not claimed by "in itself" rather it has been claimed in such manner so as to establish industrial applicability of the invention and fulfills all other criterion of patentability, the patent should not be denied. In such a scenario, the claims in question shall have to be considered taking in to account whole of the claims.

Just in case that isn't crystal clear, India's Patent Office helpfully offers some concrete examples of things that it regards as definitely patentable, as well as things that definitely aren't patentable. See if you can guess which category the following example belongs to:

A method for estimating a length of time required to download one or more application programs on a wireless device over wireless network, said method comprising operations of:

the wireless device exchanging one or more data files with server, said data files including at least information representing a size of the one or more application programs available for downloading onto the wireless device;

during the exchanging, at least one of the server and wireless device measuring one or more data transfer rates for the exchanging operation;

receiving user input of one or more application programs to download;

at least one of the server and wireless device:

utilizing the one or more measured data transfer rates and the size of the selected one or more application programs to estimate a length of time required to download the one or more application programs onto the wireless device and the wireless device providing an output of the estimated time.

So the invention consists of sending a test file or two, measuring the average data transfer rate, and then using that to estimate the download time for another file of known size. As you will no doubt have guessed, this is regarded as patentable under the new guidelines.

What could possibly go wrong?