A recent order passed by the Delhi High Court ("the Court") in the case of Ferid Allani v. Union of India and Ors., proved to be a radical decision on the jurisprudence related to patentability of computer software programs or otherwise known as computer related inventions (CRIs) in India.
The averment was made by Justice Pratibha Singh while dealing with the order passed by IPAB against the petitioner's patent application titled "a method and device for accessing information sources on the web". The Patent Office issued the first examination report for the said invention stating the objections as to lack of novelty and patentability under Section 2(1)(j) and Section 3 (k) of the Act. Subsequently, the next examination report stated that despite the amendments made in the claims by the petitioner, the application was still hit by Section 3(k).
Based on the above rejections, the petitioner moved to the High Court and argued that his patent application was an 'invention' within the meaning of the Act and that it advanced an efficient database search strategy, more economical use of memory etc. On the other hand, IPAB submitted that the present invention did not call for any interference under article 227.
With careful consideration of the arguments from both the parties, the court noted that Computer Related Inventions are dealt by following guidelines:
- Draft Guidelines for Examination of Computer Related Inventions, 2013
- Guidelines for Examination of Computer Related Inventions, 2016
- Revised Guidelines for Examination of Computer Related Inventions, 2017
Further, the court stated that the bar on patenting regarding section 3(k) is with respect of "computer program per se..." and not on all inventions which are based on computer programs. Stating that it is the effect of the computer programs which constituted the test of patentability, the court further observed,
"Ongoing digital phase, when most of the inventions are based on computer programs, it would be regressive to argue that all such inventions are not 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 non patentable inventions – simply for that reason. It is uncommon to see a product that is not computer related such as cars and other automobiles, microwaves oven, washing machines, which contains some sort of in-built computer program. Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability".
The court emphasised that the usage of the term "per se" in Section 3(k) was incorporated to ensure that the genuine inventions which are developed, based on computer programs are not refused patents". The court further stated that the meaning of 'technical effect' is no longer in dispute owing to the development of judicial precedents and patent office practices internationally and in India. The court, therefore, deemed it appropriate to direct the Patent Office to re-examine the petitioner's application in the light of the observations made in the present order, the judicial precedents, settled practices of patent offices as well as the Guidelines on Computer Related Inventions.
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