Journal of Intellectual Property Rights

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IP Protection to Software:Conflict Between Indian Provision and Practice


Affiliations
1 Hindustan Petroleum Corporation Limited Mumbai-400008, Maharashtra, India
 

Human life, in the recent past, has been affected most by the rapid advancement of information technology and allied inventions. Commerce, entertainment, sports, business, life style etc. have seen a drastic change in the manner they are being carried out and how the consumers or end users have responded to them. These advancements demand innovation and continuous development of the software and hardware involved in the process; and an innovation being an investment of intellectuality demands the economy for an equivalent return. These demands have been met by the protections granted through grant of exclusive rights, with exceptions, under the jurisprudence of intellectual property, more precisely through patent regime. However, software was for a long time considered as non-patentable because of it falling into the pool of non-patentable subject matters. This became an issue with the appearance of Independent Software Vendors who developed software which were not attached to a particular hardware. In order to promote those innovations, judicial pronouncement in US in Benson-Flook-Diehr trilogy along with international documents like PCT and TRIPS played crucial role. This paper focuses more on the provisions and practice relating to grant of protection to advancement in the field of information and technology in India. The paper analyses the practice of Indian Patent Office, from the data available, and explains the existing legal framework and jurisprudence in order to suggest solutions to the issue at hand. The paper demands a tailor made and industry beneficial policy, keeping in mind the socio-economic condition of the state.

Keywords

Software Patenting, TRIPS, PCT, Indian Patent Office, CRI Guidelines, Non-Patentable Subject Matter.
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  • IP Protection to Software:Conflict Between Indian Provision and Practice

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Authors

Abhijeet Kumar
Hindustan Petroleum Corporation Limited Mumbai-400008, Maharashtra, India

Abstract


Human life, in the recent past, has been affected most by the rapid advancement of information technology and allied inventions. Commerce, entertainment, sports, business, life style etc. have seen a drastic change in the manner they are being carried out and how the consumers or end users have responded to them. These advancements demand innovation and continuous development of the software and hardware involved in the process; and an innovation being an investment of intellectuality demands the economy for an equivalent return. These demands have been met by the protections granted through grant of exclusive rights, with exceptions, under the jurisprudence of intellectual property, more precisely through patent regime. However, software was for a long time considered as non-patentable because of it falling into the pool of non-patentable subject matters. This became an issue with the appearance of Independent Software Vendors who developed software which were not attached to a particular hardware. In order to promote those innovations, judicial pronouncement in US in Benson-Flook-Diehr trilogy along with international documents like PCT and TRIPS played crucial role. This paper focuses more on the provisions and practice relating to grant of protection to advancement in the field of information and technology in India. The paper analyses the practice of Indian Patent Office, from the data available, and explains the existing legal framework and jurisprudence in order to suggest solutions to the issue at hand. The paper demands a tailor made and industry beneficial policy, keeping in mind the socio-economic condition of the state.

Keywords


Software Patenting, TRIPS, PCT, Indian Patent Office, CRI Guidelines, Non-Patentable Subject Matter.

References