How to get Patent for Software
How to get Patent for Software in India
India has one of the most talented fraternities of Information Technology professionals in the world and a large Information Technology industry. Each year thousands of crores are spent on research and development of software products in India and there is tremendous interest in protecting the intellectual property created. In this article, we look at the procedure for protecting the intellectual property behind a software product.
Patent for Software
Most Tech Entrepreneurs who have created software or app are interested in protecting intellectual property. “How to get patent for software?” is a frequently asked questions among these Tech Entrepreneurs. The short answer is that software can be patented; but, it might not always be allowed. The patent laws in countries such as the United States of America, Singapore and Australia allow and promote patent protection for software. However, India and many European countries do not promote the patenting of software innovations.
Section 3(K) of the Indian Patents Act, 1970 lists “mathematical or business method or a computer programme per se or algorithms” under items which are not patentable. Therefore, the majority of the patents for software are rejected by the Patent Office citing Section 3(k) of the Indian Patents Act, 1970.
However, the Manual of Patent Office Practice and Procedure states that not all computer programs or software innovations fall under Section 3(k) of the Indian Patents Act. Hence, some types of software are patentable in India. To make a successful patent application for software, the key is to not focus on getting patent for the software. The focus of the application should be on getting patent for a product in which the software plays an essential part – making the software’s patent protection a part of the patent of the product.
Copyright for Software
Copyright registration is more frequently used in India to protect software. Computer software and programs can be registered as a literary work as per Section 2(O) of the Copyright Act, 1957. Therefore, copyright protection is more apt for the protection of software. While applying for copyright registration for software, the ‘Source Code’ must be submitted along with the application for copyright registration to the Copyright Office.
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 “Zip n Send” then the word “Zip n Send” can be trademarked to prevent competitors from using the same word.
It is, however, most important to consider a trademark registration for the software product name and brand name. If the software or product name is not trademarked, then a competitor can offer a product with the same name. Therefore, filing of a trademark is also an important aspect of protecting the intellectual property behind a software product.