India: Substantial
amendments for Computer- Related Inventions (CRIs) - “Novel Hardware”
provision waived off
The
journey pertaining to Guidelines for Examination of Computer Related Inventions
(herein CRI) has been both time-consuming as well as riddled with lot of
amendments. In light of several remarks and comments from numerous stakeholder’s
and further sessions with the Indian Patent Office, revised guidelines
pertaining to examination of CRIs has been published on the 30th of June,
2017 which are breather after a long dry
spell.
Item
1.3 of the amended guidelines states:
“The objective is to bring out clarity in
terms of exclusions under Section
3(k) to allow eligible applications of patents relating to CRIs be
examined speedily”.
The major highlight in the guidelines is
deletion of the concept of “novel hardware”.
Summarized
below are several revisions executed by the Indian Patent Office for Computer
Related Inventions in several categories.
A.
Test
of Patentability
For novelty,
inventive step (Obviousness) and
industrial applicability the amended guidelines completely rely on the Manual
of Patent office practice and procedure.
B.
Sufficiency
of Disclosure - It is a mandate to specify “what” is the invention and
“how‟ to perform it. For computer related inventions (CRIs), there are
requirements laid down and considered as fulfilled if the following are
addressed:
·
every feature of the invention described with
suitable illustrative drawings;
·
if the invention relates to “method”, the
necessary sequence of steps shall clearly be described with the help of the
flowcharts;
·
working relationship of different components
together with connectivity shall be described;
·
desired result/output or the outcome of the
invention as envisaged in the specification; and
·
best mode of performing and/or use of the
invention with suitable illustrations.
B. The Notoroius - Section 3(k)
The guidelines
also state to be overriding the chapter of Patent Manual containing provisions
pertaining to section 3(k) of the Patent Act , 1970
The rules comments on certain
provisions of Section 3(k) and clarify the following;
Mathematical Method: The rules read that the mere presence of a mathematical formula in a
claim, to clearly specify the scope of protection being sought in an invention,
may not necessarily render it to be a “mathematical
method” claim.
Business Method: Herein in relation to business methods, there
is a significant improvement, wherein it is stated that mere presence of the
words such as “enterprise”, “business”, “business
rules”, “supply-chain”, “order”, “sales”, “transactions”, “commerce”, “payment”
etc. in the claims may not lead to conclusion of an invention being just a
“Business Method”.
Algorithm and Computer
Programme per se: Computer programs are claimed in the form of
algorithms as method claims or system claims with some “means” indicating the
functions of flow charts or process steps. While establishing patentability,
the focus should be on the underlying substance of the invention and not on the
particular form in which it is claimed.
However, it has been clarified
that if in substance, the claim, taken as whole, does not fall in any of the aforesaid
excluded categories, the patent should not be denied.
Further, the exclusion of
computer programs should not be avoided merely by camouflaging the substance of
the claim by its wordings.
Conclusion
It is
believed that the revised guidelines implemented will be useful to applicants
and patent practitioners alike and lead to the acceptance of a wider range of patents
in the field of CRIs. On a wider spectrum, there may also be an acute decrease
in the number of patent litigation stalling the progress of many companies that
have their base in software.
The
rules appear to indicate that the Indian Patent Office has taken a more
favorable approach to the allowability of CRIs as compared to the past.
As a
whole after a long wait and patience, theses improvisations have brought in a ‘NEW DAY’ for the software fraternity.
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