Patents for pure software, also called computer programme per se in law, are not granted in

India. However, the Patent Office in 2008 created a draft manual for granting patents which
seemingly conflicts with section 3(k) of the Patents Act and partially permits granting of
software patents. Owing to this disparity and other such ambiguities related to meanings of
words in the Act, the Patent Office incorrectly grants software patents sometimes, even though
the same is prohibited by the law. But, in most of the cases, applications are duly rejected. This is
reflected in the fact that out of 19,640 applications that were filed related to electronics in the
patent office for the year 2016-17, a total of 2,860 were granted.

The Office of the Controller General of Patents, Designs and Trademarks under the Ministry of
Commerce and Industry laid down some strict guidelines, regarding what inventions can and
cannot be granted patents, which forms the basis for the patent offices to follow.

An invention is patentable subject matter if it meets the following criteria –

i) It should be novel.

ii) It should have inventive step or it must be non-obvious

iii) It should be capable of Industrial application.

iv) It should not attract the provisions of section 3 and 4 of the Patents Act 1970

An invention may satisfy the condition of novelty, inventiveness and usefulness but it may not
qualify for a patent under the following situations:

i. a mathematical or business method or a computer programme per se or algorithms;

ii. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
including cinematographic works and television productions;
iii. a mere scheme or rule or method of performing mental act or method of playing game;
iv. a presentation of information;
v. topography of integrated circuits;
Google

Search engine giant Google was granted a patent in India by the Kolkata patent office for an
information retrieval system invention which can index, identify, search, describe and rank
documents in a collection using phrases. The contention on behalf of Google was that their
invention merely gives a technical solution to a technical problem, and that it is not a computer
programme per se, nor is it a mathematical algorithm, resulting in an index that is stored inside a
memory that contains valid phrases, which is inventive.

Another patent filed by the organization, that is it’s invention of ‘voice-to-text message’
technology to transcribe voicemail into text in Google voice, was rejected by the patent office on
the grounds that this invention has only conventional features of hardware and does not contain
inventive features of hardware, and only the method is ‘invented’, observing that under section
2(1)(j) of the Patents Act,1970 an inventive step capable of industrial application will qualify as
an ‘invention’ and be granted the patent.

At the same time, another patent for ‘image identification’ was filed by Google, contending that
this invention involves identifying named entities, retrieving images associated with such
entities, that can also detect faces of the retrieved images, by using a face detection algorithm.
This was accepted as an ‘invention’ by the patents office, and the patent was subsequently
granted.

Microsoft

Recently, tech giant Microsoft filed for a patent in India for an ‘electrocorticoraphy-based brain
computer interface’ which is basically a mind-reading headset device which lets us control the
computer or mobile using our thoughts. And its intended result is to let users operate their
devices completely hands-free. This was accepted as an ‘invention’ by the patents office in India,
and the patent was granted subsequently. Following this, the US patent office also granted a
patent for the same.

Microsoft is known for regularly filing for patents in India, mostly software patents, and is the 4th
largest foreign resident applicant in India, in this regard, filing 589 patents in the year 2016-17.
The issue with the grant of the previously mentioned patents is that the topic of these inventions
in every one of the cases was business methods. The organizations contended that their
inventions incorporated a 'novel hardware' and hence, did not fall afoul of section 3(k). Despite
the fact that 'novel hardware' isn't characterized in the CRI Guidelines, leaving it to the discretion
of the patent officers to interpret the meaning of the term, it is important to understand that
business methods are completely disallowed under Indian law and the 'novel hardware'
prerequisite is allowed only when the creation is a computer program. Such patents demonstrate
that while programming/business methods are precluded under Indian patent laws, patent officers
in the nation display a disposition towards giving such patents.