Inventing Statute: Einstein’s in the Indian Patent Office

This post reminds me of lawschool folklore narrated by one of my colleagues of how a professor quizzed a class on the criteria for patentability. Seeing this as an easy brownie point a student parroted, “novelty, usefulness and non-obviousness”. The student was quite perplexed to see the professor say (with a wry smile), “incomplete and incorrect”. The professor explained that in addition to these standards it should be “patentable subject matter” under the Patents Act, 1970. The “patentable subject matter” provision is contained in section 3 of the patents act. It contains a laundry list of inventions that cannot be specifically granted patents in India. Subsection (k) states that, “a mathematical or business method or computer program per se or algorithms” is not an invention within the meaning of this act. This prohibition on software patents is not being enforced at the patent office. A search on the Indian Patents Office website reveals that software patent applications are being entertained as well as software patents are being granted!

A search for applicant name, “google” revealed that it has 82 patent applications and 4 granted patents. Patent №221913 is for a “System and Method for Enabling Publishers to Select Preferred Types of Electronic Documents”. I am at a loss of logic to find arguments to make it fall outside the scope of being a “computer programe per se”. This goes quite plainly over the semantics of the “per se” debate (which I find quite unnecessary and promoted by advocates of pure software patents). The plain language of the provision requires that the specification should disclose as to how the software is inextricably linked to hardware. Here the link between the hardware and the software should be coextensive and the hardware should not be merely incidental. Any other reading would defeat the legislative intent of section 3(K). However, there seems to be some other provision which has been applied by the Patents Office. Brings back me to the title of the post…. Inventing Statute: Einstein’s in the patent office!

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