India’s GDP results from exporting information technology to the Western world. Let us acknowledge it far and loud, for once. Brilliant codes are written and genius software developed in large numbers every day. Tonnes of money are spent on the research and development of each software; hence, there is a major need to safeguard these intellectual properties – yes, they are that! – which drives India’s growth in more ways than one.
In this article, we look at protecting the intellectual rights of the software, a much-underrated entity, although it makes for some of the highest copyright infringements. Computer-related inventions can be tricky. Firstly, you have to describe the invention very clearly. It makes sense, and that, let me say, is not an easy job, especially when it relates to computers and software – areas not easily understandable to laypersons.
It is still easy to define the functionality that the customer requires. If you have the necessary coding skills, you can even build a program that fulfills the desired functionality, but – and there is a big problem here – the area that has to be protected by a patent lies somewhere in between. It lies midway between the functionality that is desired and the code that is written to achieve it. This makes defining it all very difficult, especially for those new to the area of patents.
Software Patenting
“How to patent software” is a hot question amongst many tech entrepreneurs in India. Nowadays, when our country is undergoing a major entrepreneurial boom, we need a convincing answer to that question.
In other words, software can be patented in India, but it might not always be permitted.
Where Does India Stand On Patenting Software
In 2005, a clause was proposed to include software patents in India, but the honorable Parliament of India rejected it. A common argument in this regard is that software patenting is for minor inventions. So, an invention that many others can easily and individually replicate should not be granted since it will only decelerate the progress of the field concerned.
If you think hard, there is a point there, but less so when the country is India, a software giant in its regard. This is in contrast to countries such as the US, Australia, and even Singapore, which allow the patenting of software innovations within their political boundaries Cloud Light.
Why Does The Indian Patent Office Reject Most Applications?
Section 3(K) of the Indian Patents Act, 1970 reads that “mathematical or business method or a computer program per se or algorithms” do not fall under the category of items patented in India.
Therefore, keeping the law of our land in mind, the Patent Office duly rejects most applications even though they may be high on innovation, fortunately, or unfortunately.
Is There A Way Around It?
Yes! There is a workaround. If you read the Manual of Patent Office Practice and Procedure pedantically, you will see that not all computer programs fall under the category that cannot be patented in India. Hence, some kinds of software can indeed be patented in India.
How To Safeguard Your Software In India Then?
The trick is not to patent the software program. Instead, try to patent the product in which the software plays an integral part, a very integral part, so much so that the software stands out more than the product itself.
That way, when you patent the product, you invariably protect the accompanying software program, too, and you do that in the subtlest of ways, playing according to the rules made by the government.
Since we have discussed patenting in detail, it is only fair to look at other means of safeguarding intellectual property, namely copyright and trademark registration. Do not underestimate them by any means in India.
Copyright For Software
To protect software in India, this model of protecting intellectual property is all the more common. What needs to be done, then? Simple: register computer software and programs as works of literature according to Section 2(O) of the Copyright Act, 1957. So, copyright protection makes more sense for safeguarding software in India.
When applying for copyright registration at the copyright office, you must submit the source code and the duly filled-in application form.
Trademark Registration
In addition to patenting and copyright registration, trademark registration can also safeguard the software’s brand name. One software product may have any number of brand names. For example, if the software offers only one-of-a-kind functionality, say it allows you to “bulk send” pictures, you can trademark the term “bulk send” so that your competitors cannot use it.
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Even if your competitors come up with a similar feature, they will have to devise their terms, which may not be instantly popular and will not be able to feed off your term’s pre-created popularity. So, there is a small win for you.
Trademark registration is often underrated when protecting software, be it in India or lands where a provision for filing patents for software programs exists. If the software or the product name is not trademark registered, the competition can use the catchy terms you built and exploit the lack of patent laws concerning software in India.
So, it is necessary to be careful regarding software safeguarding. You need to protect the business from legal tangles or contact firms who can help you. These are completely different challenges when it comes to safeguarding compared to protecting a piece of art. The latter is much simpler.
