07.08.17
In India, the Elephant in the Room is the Term “Per Se” — a New Loophole for Software Patenting
A self-harming shot in the foot per se
Summary: Further analysis of the changes just made to rules in the Indian patent office after intensive lobbying by companies that are not even Indian and are notorious for patent bullying worldwide
THE EPO has been warming up to and openly promoting software patents in clear defiance of the rules. The USPTO, by contrast, gradually moves away from this software patents bubble. What about India, probably the world’s biggest software producer? Well, we had covered the subject for about 9 years and revisited the subject twice in the past few days due to changes to rules. We lack the ‘legalese’ training/background to interpret the changes with sufficient authority, so we typically rely on legal professionals who break down the changes and analyse these.
“More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device”…”Our initial interpretation of the changes, based on patent maximalists (IAM) and Indian patent minimalists (The Centre for Internet and Society), is that these changes were bad*. They were detrimental to software developers as new loopholes were being opened, making more developers susceptible to infringement claims. As we wrote 2 articles about it recently we were anxious to see if someone can contradict this and a short while ago a patent law firm, RNA IP Attorneys, referred to these changes as “one step forward, one step backward”. Here are the details:
The Indian Patent Office predicament over software patents continues. The patent office has issued another version of modified guidelines for the patentability of Computer Related Inventions (CRIs) on June 30th 2017. This is the third time the guidelines related to patentability of CRIs have been modified. The first version of the guidelines was issued on 21 August 2015 (2015 Guidelines) which were later replaced by the guidelines issued on 19 February 2016 (2016 Guidelines).
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The Patent office has now issued fresh guidelines to address concerns of stakeholders. One of the essential features of 2017 guidelines is deletion of the recommended test/Indicators to determine patentability of CRIs as detailed above. The guidelines were currently strictly applied by the examiner and in case the hardware and software did not pass the novelty test they were refused at the threshold. The deletion of these “test parameters” gives discretion to the examiners to focus on the underlying substance of the invention, not the particular form in which it is claimed. This is amplified by the clarification provided in the guidelines that when the issue relates to hardware/software relation, the expression of the functionality as a “method” is to be judged on its substance.
Finally, it may be noted that the Patents Act clearly excludes computer programmes per se. Thus guidelines have to be read with the provisions in the Patent Act. We believe the examiners would have discretion while determining the patentability of CRIs however may not allow blanket exclusion of hardware novelty requirement in a patent application by merely camouflaging the substance of the claim by its wording.
That last paragraph, regarding the “camouflaging” of “substance”, is what we alluded to the last time. More companies can now pretend that their patents on algorithms somehow pertain to hardware like a “device” and as the above puts it, the exclusion is on “computer programmes per se.” (similar to “as such” in Europe) █
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* When we say “bad” we mean pro-software patents. By contract, when IAM says “good news for patent owners,” as it did yesterday, IAM means good news for patent trolls and lawyers, not for society or businesses.
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