Legislative Implementation of Flexibilities - India

Title:	Section 3 (k) of the Patent Act No. 39 of 1970 as last amended by the Patents Amendment Act No. 15 of 2005
Field of IP:	Patents
Type of flexibility:	Patentability or exclusion from patentability, of software-related inventions
Summary table:

Provisions of Law

3. What are not inventions.

The following are not inventions within the meaning of this Act, -

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

Manual of Patent Office Practice and Procedure, 2010

08.03.06.10 A mathematical or business method or a computer programme per se or algorithms are not patentable.

a. Under this provision (Section 3 (k)), mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions. In relation to computer programs, the law provides a qualification that what is not patentable is only computer program per se.

d. Claims directed at ‘computer programme products' are computer programme per se stored in a computer readable medium and as such are not allowable.

e. If a claim in a patent application is not directed at a computer programme per se it could be patentable, if all other patentability conditions are met. This provision thus necessitates distinguishing computer programmes per se from other types of inventions that uses or implements computer programmes.

f. The computer programmes are often claimed in the form of algorithms as method claims or system claims with some ‘means' indicating the function of flow charts or process steps. The algorithm related claims may be even wider than the computer programme claimed by itself, for a programme represents a particular set, the algorithm expresses the principles generally and gives way for different programmes to be written based on the same algorithm and as such are not patentable.

g. Essentially, all computer programmes need a combination with some hardware for their functionality. In an application for patent for a new hardware system, the possibility of a computer programme forming part of the claims cannot be ruled out. It has to be carefully considered as to how integrated is the novel hardware with the computer programme. Further, it is also to be considered whether the machine is programme specific or the programme is machine specific. A computer programme which may work on any general purpose known computer does not meet the requirement of patentability.

h. Method claims, whether independent or dependent, reciting computer programs without process limitations in the form of hardware features are not allowable. For a method reciting computer programme to be patentable, it must clearly recite into it limiting hardware integers that enable the program to function.

i. Claims directed at computer programs coupled to hardware, enabling the hardware to perform a certain function may be allowable, if such an invention meets all other conditions of patentability.