Not all computer programs are barred from patentability under Section 3 (k) of the Patents Act, according to a single judge bench of the Delhi HC.
A single judge bench of the Delhi High Court comprising Justice Pratibha M Singh was hearing an appeal to a patent application filed in India under the provisions of the Patent Co-operation Treaty, which was rejected by both the Patent Office and the Intellectual Property Appellate Board.
The case of the petitioner before the Delhi High Court, was that the patent application clearly discloses a technical effect and a technical advancement, especially as of the priority date. It was not a mere software which is simply loaded on to a computer.
The court noted that there were the following guidelines issued with respect to Computer Related Inventions: i. Draft Guidelines for Examination of Computer Related Inventions, 2013
- Guidelines for Examination of Computer Related Inventions, 2016
iii. Revised Guidelines for Examination of Computer Related Inventions, 2017
These guidelines were relied upon by the petitioner to hold that the invention sought to be patented by him came under the definition of “Technical effect” and “Technical advancement” as defined under the Draft Guidelines for Examination of Computer Related Inventions, 2013.
The court examined the inclusion of the words “computer programs per se” in the text of Section 3 (k) of the Patents Act, and evaluated the inclusion of these words in the light of Report of the Joint Committee on the Patents (Second Amendment) Bill, 1999 and the prior history of the enactment. The court thus observed that the words “computer programs per se” cannot be used to bar all computer programs from patentability, and there can be exceptions made according to the dual test stated hereunder.
The EU law, namely Article 52 of the European Patent Convention which was similar has also been examined by the Delhi High Court which further observed that the fulcrum of “Technical effect” and “Technical advancement” is used to determine patentability of computer programs.
Notably, the court observed that,
“In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs, however the same would not become nonpatentable inventions – simply for that reason. It is rare to see a product which is not based on a computer program.”
Thus, the court directed the re-examination of the patent application on the basis of the observations made above.
Link to Judgment: Ferid_Allani_vs_UOI
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