Section 3(k) of the Indian Patents Act: Navigating Software Patents and Innovation

The Committee observes that the importance and value of innovative technologies like AI and machine learning will grow exponentially in the current world, particularly during the Covid-19 pandemic, in which digital applications will play a critical role in reacting to the crises. Furthermore, the enormous advantages of AI and its uses in Indias income generation and economy, in addition to its effect on technical innovation, need its safe expansion. In light of this, the Committee proposes that a new category of rights be established for AI and AI-related ideas and solutions in order to protect them as IPRs. It also suggests that the Department revisit the current laws of The Patents Act of 1970 and The Copyright Act of 1957 in order to incorporate the development of AI and AI-related inventions into their scope.

The Committee was advised that a system for patenting algorithms by connecting their use with an apparent outcome must be created. Abstract mathematical methods, for example, are not patentable under the European Patent Office’s AI standards. It is patented, nevertheless, if the mathematical approach incorporates the use of technical methods or a device, such as computers. Furthermore, tying mathematical applications and algorithms to real-world uses turns them into a technique that can be copyrighted, as is done in the United States. The Committee proposes to the Department that the methodology of tying mathematical techniques or algorithms to a real technological device or a practical application, as is practiced in the EU and the US, be adopted in India to facilitate patents. As a result, converting mathematical approaches and algorithms to a process in this manner would make it simpler to patent them.

According to the aforementioned debate in the Parliamentary Committee report, there is worry that a substantial number of inventions may be barred from patenting due to Section 3(k) of the Act. The amendment of this section would definitely be one in the legislative domain in the larger context of the stated report. Business technique inventions are not protected under the current law. A vast majority of innovations in newly developed technologies, including those by SMEs, startups, and colleges and universities, could be in the realm of business processes or computing and digital technology applications. In light of the rising developments in this field, it is necessary to reconsider the exclusions under Section 3(k) of the Patents Act of 1970. As the aforementioned Parliamentary Committee Report suggests, it is critical to evaluate the march of technology in the digital environment so that patent law is not outrun and patented itself does not become obsolete in the years ahead.

Patent Act
[Image Sources: Shutterstock]

 Recommendations and Suggestions

Section 3(k) of the Indian Patents Act, 1970, is a provision that excludes mathematical methods, business methods, computer programmes per se and algorithms from being patentable inventions. This provision has been a subject of debate and controversy among various stakeholders, such as software developers, patent attorneys, academics, and policy makers. Some of the proposed reforms and recommendations regarding section 3(k) are:

  • Clarify the meaning and scope of the term ‘per se’ in section 3(k). The term ‘per se’ means that only the computer program itself is not patentable, but it may be patentable if it is combined with other things or has some technical effect. However, there is no clear definition or guideline on what constitutes a technical effect or how to determine it.
  • Some suggest that the term ‘per se’ should be replaced by ‘as such’ or ‘in itself’ to avoid confusion and ambiguity. Others propose that the term ‘per se’ should be deleted altogether and the patentability of computer programs should be assessed based on the criteria of novelty, inventive step, and industrial applicability.
  • Adopt a more flexible and inclusive approach to patenting computer programs. Some argue that section 3(k) is too restrictive and excludes many innovative and useful computer programs from patent protection. They contend that computer programs are not mere mathematical methods or algorithms, but are expressions of human creativity and intelligence that deserve recognition and reward.26 They advocate for a more liberal and broad interpretation of section 3(k) that allows patenting of computer programs that have a technical character, solve a technical problem, or produce a technical result. They also suggest that the patent office should issue more detailed and specific guidelines on how to examine and grant patents for computer programs.
  • Harmonize the Indian patent law with the international standards and practices. Some point out that section 3(k) is not in line with the international norms and conventions on patenting of computer programs. They note that many countries, such as the US, the UK, the EU, Japan, and China, allow patenting of computer programs that meet the general requirements of patentability and have a technical contribution or effect. They recommend that India should follow the global trend and adopt a similar approach to patenting of computer programs. They also urge that India should participate in the international forums and dialogues on the harmonization and development of the patent law and policy on computer programs.

These are some of the proposed reforms and recommendations regarding section 3(k) of the Indian Patents Act, 1970. They reflect the different perspectives and interests of the various stakeholders involved in the patenting of computer programs. They also indicate the need for a more clear, consistent, and balanced patent regime that fosters innovation and development in the field of software and information technology.

Conclusion

Section 3 (k) of the Indian Patents Act, 1970, is one of the most debated and ambiguous provisions that excludes mathematical methods, business methods, computer programmes per se and algorithms from being patentable inventions. The term ‘per se’ means that only the computer program itself is not patentable, but it may be patentable if it is combined with other things or has some technical effect. However, the interpretation and application of this provision has been inconsistent and controversial, as different courts, patent offices and scholars have given different views on what constitutes a computer program per se and what kind of technical effect is required for patentability. Some of the issues that have arisen in this context are:

  • How to distinguish between a computer program per se and a computer program that is part of a technical invention?
  • How to define and measure the technical effect or contribution of a computer program?
  • How to balance the interests of software developers, patent holders and the public in promoting innovation and competition in the software industry?
  • How to harmonize the Indian patent law with the international standards and practices on software patents?

These issues have not been resolved conclusively and require further clarification and guidance from the legislature, judiciary and patent authorities. The current state of affairs creates uncertainty and confusion for the software industry and the patent applicants, and may hamper the development and protection of software innovations in India. Therefore, it is suggested that Section 3 (k) should be amended or interpreted in a way that provides clear and objective criteria for patentability of software-related inventions, and that reflects the technological and economic realities of the software sector.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

  1. Section 3 of Indian Patent Act: Importance and Interpretation, Effectual Services (Apr. 22, 2020), https://www.effectualservices.com/section-3-of-indian-patent-act-importance-and-interpretation/.
  2. World Intellectual Property Organization, Flexibilities of the IP System: Compulsory Licenses, WIPO, https://www.wipo.int/ip-development/en/agenda/flexibilities/details.jsp?id=8825 (last visited Nov. 22, 2023).
  3. S. Rana & Co. Advocates, Section 3(K) Of The India Patents Act, 1970: A Never Ending Challenge For IT Giants, MONDAQ (last visited Nov. 3, 2023).
  4. QuickCompany, Section 3(k) of Indian Patent Act, 1970, QuickCompany, https://www.quickcompany.in/articles/section-3k-of-indian-patent-act-1970 (last visited Nov. 3, 2023).

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