Software Patent in India
The software industry has been a major economic driver for India thanks to its vast pool of hugely talented fraternity. In computer science, information technology, robotics, Internet of things (IoT), Robotics, electronics just to name a few. Innovative ideas of solving problems or making existing processes more efficient by the use of technology. Have been the key to the success of these start-ups and self-motivated individuals and teams. Protecting the backbone on which the technology relies is the key.
The export of software services from India climbed up 11.6% reached $108.4 billion during 2017–18. According to the RBI’s annual survey, the IP rules have frequently been updated in response to the growth and expansion of the software sector. There is, however, and yet no law that deals solely with technology and software programmes. Software is protected by trade secrets, patents, and copyright in some cases. Despite possessing legal protections for intellectual property, the country lacks a developed body of case law, hence the American approach is frequently used to handle such issues. An IP protection of computers software and programes is not mentioned in the Act on Information Technology of 2008, even after it was revised.
Patent for Software
“How to get patent for software?” is a frequently asked questions among these Innovator Entrepreneurs. The short answer is that software can be patented; but, it might not always be a cakewalk. The patent laws in countries such as the USA are quite different from that in India which does not allow is to computer program to be patented by virtue of section 3(k) in the Patent Act which states that “mathematical or business method or a computer programme per se or algorithms” under items which are not patentable. In addition, the Computer-related guidelines (CRI) is not conducive to allowing patent protection to the software.
However, the patent of software is granted provided the objections under section 3(k) can be appropriately justified. The restriction is on patenting standalone patents and not on something that adds value to the system. It is the skills of the patent agent in his ability to draft claims and address objections raised under section 3(k) of the Patent Act 1970. The focus should primarily be obtaining a patent for a product in which the software plays an essential part & highlighting its technical contribution. Thus, it is quite possible to get a patent for the software.
Copyright for Software
Copyright registration is more frequently used in India to protect standalone software. Section 2(O) of the Copyright Act, 1957 allows for Computer software/programs to be registered as a literary work. Copyright protection is, therefore, an adapter and easy to go for approach in the protection of software. While applying for copyright registration for software, the ‘Source Code’ must accompany the application for copyright registration to the Copyright Office.
Typically, the creator of the work himself is the owner of the copyright. However, in the event of an employer-employee relationship, absent a contrary agreement, the employee is the first holder of any work created while the employee was employed. The relationship between a software programme and an employee is comparable to that between an employer and employee. Exclusive and right to keep and distribute copyrighted software belongs to its owner. Any unauthorised third party who imitates the action will be held accountable for copyright infringement.
However, appropriate use and code breaking of the programme are permitted by the Act and won’t be considered violations. Additionally, making copies or adaptations of such a programme by a legitimate owner in order to establish a temporary backup for the possibility of loss or damage of such software programme for the intended use should not constitute infringement. In addition to this, no one can be held accountable for copyright infringement if they have been given permission by the copyright owner to utilize their copyrighted work.
Trademark Registration
In addition to patent and copyright, a trademark registration can also be filed to protect the brand name of the software product. A software product may have a number of brand names in-built and these names can be trademarked. For instance, if a software product offers a unique functionality named “It kills the virus before sending the file to USB or uploading it” then the word “Kill n Send” or “Clean n send” can be trademarked to prevent competitors from using the same word.
Software design specifications, ideas, or structures may be protected as trade secrets. The structure of the program and its distribution method affect trade secret protection. Is if code is kept under wraps, software that is only disseminated as object code could be protected in part.
However, using a trade secret as a form of protection has several drawbacks. The owner has no legal recourse against anyone who is capable of reversing engineer a trade secret using information that has been made public. Additionally, it is crucial to note that any programme or computer technology that is prone to vulnerability or that is simple to copy should not be used.
In India, contractual and tort laws protect trade secrets. However, this contractual protection is only applicable to the parties who sign the agreement. As long as they behave in good faith, parties who are not parties to the agreement are not affected.
Need of Software Patent:
- If your service or product includes software, you should research your options for obtaining a software patent.
- Copyrights can prevent people from utilising your actual code. But they will not stop someone from independently developing the same software.
- A patent can allow you to stop the other party from utiliZing. The practical elements of the software that is the basis of your claim.
- Even if they independently developed the software. Visit the relevant section of our article on patents.
- Although registering is not required, it is suggested from an enforcement standpoint because copyright protection is offered by default.
- Stakeholders and creators generally stress how crucial it is for software to have recourse to patent protection.
- This is done to prevent the innovation from being manufactured, sold, or used any other way by anybody else.
- A patent offers an invention broader security. Independent and small-scale producers can escape competing from larger companies with more powerful resources, which really is especially favourable.
- Patents include licensing rights. These rights are available for the inventor to use commercially. A patent gives a business recognition and visibility on a global level, which could lead to profitable relationships. The benefits of a patent may ultimately exceed the costs.
Conclusion
In general, computer software is protected under India’s copyright laws. The level of protection offered by license agreements for the software’s symbolic and literal components. Fair use guidelines, and authors’ rights, however, has not yet been recognized or acknowledged by Indian courts. It is further shown given that such a programme is an innovation. Its own and not simply software built on an algorithm, it might also be protected by patent laws. Because there is no clear regulation detailing the extent of protection afforded to technology as a trade secret. Trade secrets seem to be a restricted and constrained option for safeguarding the IP held in the software.
