Software Patents In India & USA: A Critical Legal Analysis


The software has, in view a long time ago, represented a pickle for patent law. As many have noticed, the software is a theoretical innovation, yet unique thoughts are ineligible for protecting. This paper explores what that implies, what it does not mean, what may fix the reflection in programming licenses, the enforceability of software patenting in different jurisdictions, judicial approach towards software patenting, and comparison between the USA and India.

The term software does not have an exact definition, and surprisingly the software industry also neglects to give a particular meaning. However, it is, fundamentally, used to portray the entirety of the various kinds of computer programs. Computer programs are, essentially, divided into Application Programs and Working Framework Programs. Application Programs intends to do explicit assignments executed through the computer. The Working Framework of Programs is used to manage the interior elements of the computer to encourage the utilisation of the program.

Even though the term Software Patent does not have a generally acknowledged definition. One definition proposed by the Foundation for a Free Information Infrastructure is that a software patent is a patent on any computer performance realised by methods for a computer program.

Software patents are patents that ensure software designs and ideas. These ideas are, subsequently, used for software. A given patent may confine others from creating software programs that execute a function in a particular manner or keep others from using specific calculations. Various nations have different software patent protections. For patent security, software applications should concur with both formal and meaningful prerequisites. These prerequisites can be lawfully and unpredictable, and their arrangement regularly requires the help of legal specialists. This paper analyses the necessities and results of software patents and attempts to address the inquiry of whether software ought to be protected or not.

This paper also focuses on the per cent of patent lawsuits involving software patents yearly and the probability patent is in a suit within four years of issue.

Software Patents in India & USA

The most difficult part of software invention is to diversify it and protect it under intellectual property rights. Software is very different from other intellectual properties. After all, they pose laborious efforts for having uniqueness from those of legal fields. The main issue lies in the fact that software is a building block of invention. Every kind of software has different features which make it group under various intellectual rights protection. A single part of software possesses around 10 million codes, out of which one particular code needs protection. This convolution makes software hinge on different technologies. Many people are of the view that this pattern of the software industry prevents it from getting patented. The way software is developing is very progressive. Hence, everyday innovations are made to improve existing software, and the industry is overflowing with new thoughts and ideas. So, by the time unripe software garners attraction among the masses, it is knocked down the notch by commercially valuable and newer software. So, a sense of uncertainty arises, this, in turn, is a threat for new patents that are very similar to old ones, and innovators usually exclude the former partiality as a whole.

So the market is mainly economically driven rather than being revolution driven. The industry philosophy is doing it right the first time, rather than just doing it first. The logic behind patent protection is to motivate invention for the sake of invention and not for the thriftiness of the software industry or being in accord with it. The one thing that catches our attention is that the thriftiness of the software industry is aces from foreign players. Eventually, the choice is made between high-grade patent protection and low initiation of copyright protection. This choice cannot be made randomly and depends to a great degree on the legal and economic characteristics of both kinds of IP protection.

Researchers have claimed software patent claims tend to be broader, very much advantageous from patents. A brief analysis shows Indian software industry constitutes by a lot of low economy class private domestic firms. Very few of them are capable of earning revenues around 500 million. Therefore, patent protection is necessary for software in small and medium-sized enterprises. First, outstanding simplification is that the uniqueness of software accidents that put in abstract language, which results in patenting the product in terms of abstract. Second, similarly postulates that courts have granted the uniqueness to withstand due to overeating skills of common software programmers. Both the hypotheses have failed to acknowledge the key feature of the software, and the diversity of software patents and refuse that software is inherently practical.

Software is so unique that it should be treated differently than other kinds of technologies when it comes to patent protection. It misguides feature limitations by concerning the judicial attempts in software claims.

The actual invention in software patents is its viability. If software patents are limited to implementation details, described in characteristics points, then it will be arbitrary for judges to come into choices of implementation. The real question lies here is whether software patent scope is limited or whether it should be patentable at all, which creates complexity while answering the question. The main objective is that the software itself is unique in patent protection and its economic benefits to that of patents. Provided the early ambush on software patents, in absence of rationality. It is obscure that software patents can still get a righteous hearing. There is no proof of how much threat snare litigation puts on software patents. The huge lump sum of money invested in these suits by large companies provides uncertainty as they discourage research in technology which corrodes the society from inside as a whole. To innovate technologies rapidly, incentives are given to inventors by the patent system, which causes subjective partiality against software patents because individual cases of blocking are detected easily rather than involving innovations that have pervasive and positive effects as a whole. If certain risks are detected in software patents, then innovative good patents can be distinguished from significantly bad ones. We know software is unique in its way, so for the upliftment of technology research, it is crucial for software to adjudicate the role of the patent system.

Judicial Approach for Software Patents in India

In India, the Patent Amendment Act, 2005, had introduced Software Patents. The amendment proposed in the Patent Amendment Act, 2005 for clause 3(k) is - A computer programme per se other than its technical applications to industry or a combination with hardware, a mathematical method or business method or algorithms.

The Indian judiciary is trying to cope up with the menace of software piracy, which is growing.

Bishwanath Prasad Radhe Shyam v. Hindustan Metal Industries

Hindustan Metal Industries (the plaintiff’s firm) is a registered firm that carries the business of brass and German silver utensils at Mirzapur. The defendant carries on the business of manufactured dishes and utensils at Mirzapur. The defendant starts using the plaintiff's patented method - manufactured dishes for which the plaintiff filed a case of infringement. The Court held that the fundamental principle of patent law is that a patent is granted only for an invention that is new and useful. That is to say, it must have novelty and utility. It is essential for the validity of a patent that it must be the inventor's discovery as opposed to mere verification of what was already known before the date of the patent. The question of the inventive step involves mixed questions of law and facts, and it has to be decided mainly on the facts of the case.

In F. Hoffmann la Roche V. Cipla, Roche claims that he was granted a patent for Erlotinib and starts selling drugs under TARCEVA (the brand name). Roche filed an infringement suit against Cipla. Roche lost the above suit, as the Honorable Court felt that stopping Cipla’s manufacture would be against the public interest, and so the balance of convenience was in Cipla’s favour.

Hon'ble Supreme Court has laid down the test to ascertain as to what constitutes an inventive step, which is to be seen from the standpoint of technological advancement, as well as obviousness to a person who is skilled in the art. It is emphasised that what is required to be seen is that the invention should not be obvious to the person skilled in the art. The normal and grammatical meaning of the said person who is skilled in the art would presuppose that the said person would have the knowledge and the skill in the said field of art and will not be unknown to a particular field of art, and it is from that angle one has to see that if the said document which is prior patent if placed in the hands of the said person skilled in art whether he will be able to work upon the same in the workshop and achieve the desired result leading to the patent which is under challenge. If the answer comes in affirmative, then certainly the said invention under challenge is anticipated by the prior art. In other words, obvious to the person skilled in the art as a mere workshop result and otherwise, it is not. The said view propounded by the Honourable Supreme Court in Biswanath Prasad (supra) holds the field till date and has been followed from time to time by this Court till recently without any variance.

Yahoo v. Controller of Patents and India Limited

In this case, Section 3k was discussed in greater detail, and the patent application was rejected owing to a business model being embodied via technology. It was implied that the business model disguised as technological innovations would not meet the criteria

for the patents being granted in India. In the case of Yahoo, the patent claims included features of a software tool targeting search terms relevant to Yahoo's business. Accordingly, the IPAB concluded that the technical advance proposed by Yahoo was simply a method of doing business, even if it was a technically smarter way of doing business and, therefore, cannot be patented under provisions of Section 3(k) of the Patents Act.

Judicial Approach for Software Patents in the USA

Many cases have been trying to resolve the abstractness of software inventions by different tests to determine the patentability of computers relating to inventions. But there has been no confirmation test or rules and judgements that could determine its patent eligibility yet.

In Parker v. Flook, the Court stated that every process is not patentable since the abstracted ideas have not been patented. The Court also stated that abstract concepts or mental processes are also not patented. But if the abstract ideas with the help of practical applications are associated with the apparatus or hardware, such inventions are patented.

In Re Warmerdam, the Court’s finding that the steps of locating the medial axis and creating the bubble hierarchy were not patentable subject matter as determining whether a machine having a memory storing a bubble hierarchy is within the scope of the claim.

In, State Street Bank and Trust Co. v. Signature financial group, Inc., the signature financial group had been granted a patent for Data Processing System for Hub and Spoke Financial Services Configuration.

The spokes are the mutual funds that are pooling their assets in a Central Hub.

When this is done in connection with daily accounting procedures under Internal Revenue Service (IRS) regulations, the profits are passed through to the shareholders for tax purposes, without being the first subject to corporate income tax, as they otherwise would be. The procedures are so complex that they could not be performed, in the time interval, IRS regulations allow, without using a programmed digital computer. It has been pointed out that the patent claim comprises means for performing steps that are the requirements specified in an Internal Revenue Service regulation for avoiding taxes on a partnership. This chart illustrates how the wording of the patent claim corresponds to the US tax statute and regulations. The patent is, thus, in effect, one in compliance with US tax law.

The Court’s ruling was that a data processing system in managing a financial service configuration for a Portfolio is claiming in means plus function language and had produced a numerical result which was a statutory subject matter. The Court had further stated that the business methods are subject to the same legal requirements for patentability as applied to any other process or methods.

In Re Nuijten, the Court found that claims cover transitory electrical and electromagnetic signals propagating through some medium, such as wires, air or a vacuum and not encompassed by any of the four statutory categories enumerated in the patent statute; process, machine, manufacture or composition of matter.

The Court explained that the signals, comprising a fluctuation in electric potential or electromagnetic fields, is not a chemical union nor a gas, fluid, power, or solid and is therefore not a composition of matter.

In Re Lowry, the Court had noted that Lowry is not attempting to claim information content or attributive data model in the abstract but rather specific structural elements. The structures were of physical entities, and it had increased the efficiency in computer operation.


Software programs are kind of those memory files and data that needs proper authorisation as well as safeguards. If they fall into wrong hands they can change the landscape of the market or even the world. Therefore encryption is necessary. So the consoles using software programming as a tool must be protected by patent. To promote scientific research and development, perks in technology, software must be patented. They are minute codes but play a critical role in the database and collection of resources. India was the very first nation to implement software protection. By putting forward norms and regulations, but lacking behind the USA in numerous instances due to the practical approach or development in the law. So, in this current time scenario, India must improve its laws for the protection, and promote technology enforcement.

Software patents are distinguishable from physical object patents because they are non-tangible. The scope lies in their separation from the self-explanatory field of software, which is easy to capitulate, and the tangled physical world that is just the opposite of the former. The software invention is practical. Once this aspect is clear, it will not be difficult in going through the prevalence of software patents in litigation.

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