LEGAL ISSUES RELATED TO SOFTWARE PATENTS IN

INDIA, U.S., U.K., JAPAN, CANADA

Submission to: Ms. Shreya Chatterjee

Subject: Law relating to Information Technology &
Intellectual Property Rights
Course: BA.LL. B
Batch: 2019-2024
Semester: 8TH Semester
Submitted by: Mohima Dutta (1983082)
Suman Kar (1983085)
Pallavi Kumari (1983091)
Piyush Padhi (1983092)
 Table of Contents

1. Introduction

2. Literature review

3. Research Methodology

4. Debates over software patenting

 Arguments against software patenting

 Arguments in support of software patenting

5. Copyright v. Patent Protection on Software

 Software Protection under Copyright

 Software Protection under Patent

 Advantage of Patent Protection over Copyright Protection for Software Patent

6. Legal issues and Software Patent protection in Japan

7. Legal issues and Software Patent protection in India

8. Legal issues and Software Patent protection in UK

9. Legal issues and Software Patent protection in USA

10.Legal issues and Software Patent protection in Canada

11.Comparison of some key aspects related to software patent laws in India, the

United States(US), the United Kingdom (UK), Japan, and Canada

LEGAL ISSUES RELATED TO SOFTWARE PATENTS IN INDIA
U.S., U.K., JAPAN, CANADA

Abstract:
The impact of software patenting difficulties on the software industry is discussed in the article.
It explains the significance of protecting software's intellectual property. Outlines the key points
of the ongoing global discussion about whether software patents can encourage or impede the
software industry's innovation process, tries to formulate a conclusion for some of the nation’s
favoring and issuing software patents based on the justifications offered by two schools of
thought and current trends in the software sectors. The final section explains position of India,
UK, US, Canada, Japan on software patenting. After discussing the implications of a robust
software patenting regime for India, U.S., U.K., Canada, Japan, it finishes with conclusions.

There are differences in approaches to the patentability of software, as evidenced by data on the
number of patent applications filed and grants in the field of computer technology in nations
including India, U.S., U.K., Canada, Japan, and India. Different techniques are causing
disagreements about whether software should be patented, which is causing a software patent
war. The present software patent conflict has led to concerns about technology protection,
enforcement, and business expansion. This article clarifies the concerns surrounding software
patents. The essay makes an effort to comprehend the current state of patent law and practice
with regard to inventions relevant to computers in India, U.S., U.K., Canada, Japan.

Introduction:

Computer Industries during the earlier days, developed software combined with hardware. The
intellectual property had an issue which was confined to hardware only. During the sixties all of
this changed when Software was separated from hardware. This led to the creation of
independent software vendors along with standardized and customized operating system and
independent application software. In the late seventies and eighties there was rapid spread of
personal computers and cost-effective desktop which opens up enormous aspect of ISVs. There
was a gradual increase in overall production, consumption, and trade with the development of
software industry.

The adoption of the internet in 1990s opened up new avenues for software packaged marketing
and its low-cost distribution, reducing the entry barriers into the software packaged industry.
Basically the software packaged products expanded the rapid penetration of markets. As a result,
the software piracy increased due to software consumption and easy market penetration via
internet. In the year 2000, there was around 37% of global piracy rate. That means that 37% of
the software which was sold was fake. Every year due to such software piracy companies
incurred heavy losses of revenue.

This has increased the significance of issue of software intellectual property protection. The
software being a complex product has spawned a completely different form of industry where
intangibles serve as both input and output. The returns to investment and market structure are
influenced by the intellectual property ownership. The issue with regard to patenting software
has generated a considerable attention and debate.

The main issue which is to be discussed in this paper is with regard to patenting software and its
effects on software industry. There is a debate going on with regard to whether software patents
are beneficial and detrimental to the software industry, basically there emerged two schools of
thoughts- one who favors software patents and one who does not. The justifications for software
patenting are then presented. On the basis of the two sets of reasoning, a third perspective is
formed. In the final section the Indian, U.S., U.K., Canada, Japan concept is discussed with
regard to software patenting before the conclusion.1

LITERATURE REVIEW
This literature review sheds light on the pressing issue of software patents by giving an account
of the approaches followed in Europe, the US, India, UK, Canada.

The balance between the advantages and dis advantages of patents must be considered in relation
to each specific field. This issue of choosing the optimum patent system is quite a different one
to that of whether under a given system a company should seek to patent its results or not.
Decisions regarding the most appropriate legislation must take into consideration its impact on

1
Yogesh Suman and V K Gupta, Patenting Issues in Software Industry, vol 7 Journal of Intellectual Property Rights,
516-517, (2002).
society and the economy as a whole and not just on isolated players. Players must also be
considered not only as potential holders of patents but also as potential infringers of patent law.

In the case of software, patents pose an obstacle to innovation and the spread of knowledge, they
have a negative effect on the economy and infringe citizens’ rights. This particular debate is the
most widely studied and debated aspect of the overall issue, so much so that the main proponents
of software patents in Europe no longer openly defend the patentability of software; rather they
point to the advantages of patents in general and propose criteria permitting software patents
while claiming not to. That being as it is, however, it is still helpful to briefly present the main
arguments.

As set out in figure 1, the majority of European software patents

are held by companies from the US and Japan.

Software patents are not popular: programmers are not willing to pay patent rights for programs
which they have developed independently without even realizing that some of the many concepts
employed were patented, and consumers do not wish to see multinational companies with
powerful legal departments monopolizing the computer market through software patents which
enable them to impose their pricing policies. In fields requiring empirical experimentation,
laboratories and testing for development of patented concepts, finding investors could prove
difficult in the absence of patents guaranteeing a return. However, such infrastructure is not
required in the field of programming or mathematics: all that is required are people and time.
Normally, putting the concept into practice is more expensive than developing the idea, and
implementation is covered by copyright. In legal terms, applying patents to software, in addition
to copyright (which has been successfully applied now for some time) would lead to complex
interactions.
Proponents of software patents seek to relate innovation with the practice of patenting, through
the argument that the more patents, the more innovation; however, this argument is clearly
oversimplified and refuted by studies such as those by Galli and Bessen and Hunt, and also by
history itself: the main software innovations have been in periods when software was not
patentable. Of particular interest in this regard is the study by Wheeler,16 which found software
patents and innovation to be inversely related. Not only do software patents not foster
innovation, they actively prevent it. For example, between 1987 and 1994 concession of software
patents rose by 195% in the US, while R&D spending dropped by 21% among computer
companies, despite rising by 25% through industry generally.

RESEARCH METHODOLODY

The patent system endeavours to achieve a balance between promoting the creation and funding
of new products. In doing so, it always tries not to hamper innovation or delay the development
of future products so as to provide the maximum benefit to the

citizens. This paper analyses the Legal Issues related to Software Patents in India and other
countries like US, UK, Japan and Canada with the help of data of filed and granted patent. Legal
theory, statistical research and international approaches have provided us with clear justification
for a policy based decision regarding software patentability.

The authors collected data from multiple sources, including the U.S. Patent and Trademark
Office (USPTO). They obtained information on patent filings, grants, and litigation related to
software patents of the countries, as well as data on firms R&D expenditures and productivity
measures. Patents have been intensely controversial in this industry, largely for the reasons
delineated above. This paper is related to earlier empirical works, which have largely focused on
understanding the impacts of a single intellectual property policy reform.

The authors have used the Doctrinal Research Methodology for the completion of this research
paper. The authors have done a systematic investigation that entails the collection of data, critical
information, arranging it all and then analysing it to deduce something meaningful. We have
taken references from all the existing laws in this field, previous case laws, precedents,
international trends, legal commentaries, articles by scholars, dictionaries, encyclopaedias,
journals, treatises, textbooks and other sources of legal information. The analysis considered
factors such as patent quality, patentable subject matter, patent litigation, and the presence of
large patent-holding firms in the countries such as Japan, India, US, UK and Canada.
Debates over software patenting: -

There has been a global debate with regard to the issue as to whether software patent is
beneficial or detrimental for development of software industry. Different points of view have
surfaced in the global discussion. There are organizations that raise voice against software
patenting like league for programming freedom and free software foundations.

THESE ARE SOME OF THE ARGUMENTS GIVEN BELOW AGAINST SOFTWARE

PATENTING:

1. The main objective behind granting patent is to promote innovation within a particular
industry. But according to the contention of the free software proponents the software
industry is exempt from this need. Computer software is a product with a lifelong shelf,
fully debugged software serves its purpose without needing any kind of maintenance or
change, unlike other industrial goods that degrade with time. Therefore, any software
product may be sold to certain customer once. Any software company that does not
create new and innovative product will eventually run out of clients, if it is to be sold to
that customer again. It must be improved with new features and capabilities. This will
enhance innovation in software sector even in absence of patenting system.

2. The patenting system might deter independent young programmers from implementing
innovative concepts for further innovations, because the patent issued on the algorithm
combinations and technique produce certain software feature. The software industry has
primarily been inspired by these programmers. The software sector has seen many
instances when the patenting system has backfired. Public key encryption which got
patent protection in U.S. is one such instance. It basically prohibited the use public key
encryption in the U.S. until its expiration in 1997. A couple of software which was
developed by the people got crashed- there were not made available to the programmers
who tried to enhance the software based on public key encryption due to the threatening
of the patent holders. Because of the risk of patent infringement or the difficulty in
getting licenses from people who currently have patents for certain particular capabilities,
software developers will find it challenging to include them into new software. An
 illustration with regard to the 1984-written data compression software, The LZW
algorithm compression, which served as the foundation for the software, was unprotected
during that time. The US Patent Office granted a patent based on the algorithm in 1985,
and during the following several years, those who disseminated the data compression
software began receiving legal threats. In a similar situation, Apple was accused of
infringing on patent number 4,736,308, which described a specific method of scrolling
over a database and showing only portions of each line of text. The scrolling and display
functions are commonplace software features when used separately, but combining them
without permission from the owner of patent 4,736,308 made it appear to be illegal.

3. When it comes to software industry, success comes from "doing it right" as opposed to
"doing it first" or "doing it differently." It is always advisable to apply previously existing
concepts is what distinguishes a product as distinct and practical, for example. Compilers
were not created by Borland. Operating systems are not a creation of Microsoft.
Networking was not created by Novell. Unix was not created by Sun. The graphical user
interface was not created by Apple. The database is not a creation of Oracle. These are all
examples of companies that are successful in their respective industries. Software
patenting may enable companies to monopolies emerging innovations, which could
jeopardize the entire philosophy of the software industry.2

4. THERE ARE SEVERAL PROBLEMS THAT WE FACE WITH REGARD TO

SOFTWARE PATENTS. FEW OF THEM ARE MENTIONED BELOW:

Nature of software complexity:

Software is an extremely complex product, due to the fact that it is not subject to the
limitations of the physical world. For instance, there might be no more than 1000
components in sophisticated consumer goods like video cameras. Thus, a product can
have parts protected by a small number of patents. There could be between 100,000 and
10 million lines of code in a large computer program. In the software sector a product

2
Simson L, Garfinkel, Richard M, Stallman, Mitchell Kapor, Why Patents are bad software, Vol 8 Jstor, 50-55,
(1991).
 might contain numerous innovation, some of it might be protected by a patent. The core
parts of software are likewise difficult to categories. It is anticipated that there will be an
explosion in the number of potential patents covered, which will make it challenging to
know for sure what is patented.

Complexity in prior art search:

The computer science literature is quite big. It not only includes published sources like
user manuals and academic articles, public source codes, as well as liked accounts in
computer enthusiast’s magazines. A group of university chemists may publish 20 or 30
pages of research each year, whereas a programmer alone could write hundred times
more than that amount. When algorithms and approaches are combined and patented, the
problem gets even more complicated. Although programmers frequently create novel
algorithms and approaches, they hardly ever publish novel combinations of existing ones.
Although different algorithms and techniques have been merged in the past in a variety of
ways, there is no reliable way to trace that history. This makes the task of prior art search
impossible.

Software Product Evolution:

The development of software products happens very quickly, and with the help of
microprocessor, the speed doubles up every consecutive years or even faster. The nature
of software is likely to continue to change quickly on a qualitative level. A patent has a
20-year assignment period. For conventional businesses, which normally create a new
generation of products every 10 to 20 years, this patent system may be enough. This
might not be true for the software sector, where product generational change occurs at a
faster rate than in other sectors. The prolonged existence of software patents may make it
challenging to create new products, which could slow the growth of the software sector
as a whole.

5. The development of open source software can be slowed down by the patenting system.
The software with regard to Human readable source code is allocated including the
software product. The commercial software businesses maintain strict confidentiality and
 control over the source code of their products, preserving a monopoly on adding features
and resolving defects to their software. The cost to the consumer goes up as a result. The
commercial software businesses maintain strict confidentiality and control over the
source code of their products, preserving a monopoly on adding features and resolving
defects to their software. The cost to the consumer goes up as a result. Due of a lack of
competition, any software upgrade becomes expensive. This leads to an excessive
reliance on proprietary software, high licensing costs, the expansion of the grey market
for pirated software, and a reduction in global software industry innovation. These
limitations are not applicable to open source software because it is provided with the
source code. The user can alter it according to local requirements. Additionally, this
software is practically completely free. These two factors have caused open source
software, like Linux, to become so well-liked that it is now posing a serious threat to the
sellers of proprietary software. And right there is where there is risk. Commercial
software providers increasingly have a tendency to utilize their patent holdings as a
weapon in the marketplace, specifically to block the entry of new rivals. The creation of
fresh graphical user interfaces and desktop environments for Linux and other open source
operating systems puts the open source software movement at even greater risk. The K
Desk-top Environment (KDE) and GNOME are two examples. These desktop settings are
necessary to make Linux more approachable and simple to understand. A user-friendly
graphical environment resembling the Microsoft Windows or Macintosh interface is
offered by KDE and GNOME. They provide software development environments that let
programmers quickly produce new open source software. The desktop environments'
user-friendly features are also present in software created in this manner. However, many
of the algorithms used to develop graphical user interfaces are protected by software
patents.

THESE ARE SOME OF THE ARGUMENTS GIVEN BELOW IN SUPPORT OF

SOFTWARE PATENTING:
The other school of thought is of the contention that that the expansion of the software sector
will be aided by the awarding of patents to software. The main justifications for their claim are
provided below:3

1. A patent rewards the researcher's time, money, and efforts in his or her pursuits and
encourages additional study by fostering competition as competitors try to come up with
alternatives to the patented innovations.

2. Companies can recoup their R&D costs through the patenting system during the
exclusive rights period, allowing them to continue investing in R&D. According to IBM's
annual report from 2001, the company's intellectual property portfolio produced licencing
royalties of US$1.5 billion. In 2001, the business received record 3,411 patent awards
from the US patent and trademark office.

3. It can give small and medium-sized businesses a fair playing field when competing with
larger software companies in the by safeguarding their intellectual property in the global
software industry. A California court ordered Microsoft to pay $120 million to Stac
Electronics (a small software company) in 1994 for allegedly utilizing the latter's data
compression programme.

4. Strong patenting laws will contribute to the reduction of software piracy, which costs
software firm’s enormous sums of money every year.

5. There will be an increase in the venture capitalist investment in the software sector due to
strong IPR protection provided by the patents. More and more VCs are determining if the
firm they are investing in has patented its fundamental technology.

3
Andres Guadamuz Gonza´ lez, The software patent debate, vol. 9 Journal of Intellectual Property law & Practice,
1-11(2006).
COPYRIGHT V. PATENT PROTECTION ON SOFTWARE

Software is covered by both copyright and patent laws, but which one takes precedence will
depend on the applicant's desire for a particular strategic advantage. Programmer's source code is
protected by copyright, but neither the idea behind it nor its ability to be duplicated is.
Contrarily, patents grant their owners the right to prevent others from using their innovation,
even if it was independently discovered and no copying was done.

COPYRIGHT PROTECTION IN SOFTWARE PATENT

Software is essentially source code that contains instructions for the computer programme. The
written expression of the source code is thus a literary work that logically qualifies as being
protected by copyright. Original works fixed in any tangible medium of expression are protected
by the Copyright Act. Software is protected as literary work under the Copyright Act, which
grants protection to literary works including computer programmes. 4 In the case of Apple
Computer, Inc. v. Makintosh Computer Ltd5, the Canadian Supreme Court ruled that the
hexadecimal version of a program stored on a microchip should be considered as software,
making it eligible for protection under Section 3(1) of the Copyright Act. In a notable decision,
the Delhi High Court awarded damages for copyright infringement in Microsoft Corporation v.
Yogesh Papat6. Microsoft alleged that the defendant was loading the copyrighted software onto
the hard drives of computers they were selling without obtaining a license. In India, authors'
works are protected by a copyright for their lives plus 60 years. Therefore, it might be appealing
to protect software under copyright law (which is already automatic). It should be noted, though,
that copyright only protects how an idea is expressed, not the concept itself. As a result, in the
case of software programmes, it is the software programme itself that is protected rather than its
functionality. Therefore, relying entirely on copyright law to protect inventions linked to
software may not be a wise idea. It could be a good idea to look into the possibility of using
patents to protect inventions linked to software.

SOFTWARE PROTECTION UNDER PATENTS

4
http://legalonline.blogspot.in/2011/03/copyright-protection-for-computer.html (Last updated 10 Sep, 2023)
5
Apple Computer, Inc. v. Mackintosh Computers Ltd. [1990] 2 S.C.R. 209
6
Microsoft Corporation vs Mr. Yogesh Papat and Anr. 118 (2005) DLT 580
The debate now is whether software's functionality can be protected by copyright or not. The
answer to this is no, as copyrights do not apply to non-literal components of software
infringements. There is no copyright protection for the functional portion.
Therefore, patents were able to save the functional part of software. When a patent is utilised to
provide protection, industrial applications are granted a monopoly rather than the expression of
ideas. Therefore, it would be advantageous to patent a programme when it is original, has an
inventive step, and may be used in several industries. Software patents and business method
patents are the two main categories for technology-related patents.
The Indian Patent Act specifies a list of subject matters that are not patentable along with the
ability for a novel process or product incorporating an innovative step to be used in industry.
According to Section 3(k) of the Act, "computer programme per se" is not a patentable subject
matter, which is a list of things that cannot be patented.
The following outlines the fundamental requirement for obtaining a software patent:
1. The invention's industrial application—the invention must be able to be produced and
employed in a particular industry.7
2. Inventive step: The innovation must include technological advancement relative to the
state of the art, economic significance, or both, making it obscure to a person of ordinary
skill in the field.
3. Novelty identifies what is novel. something that was not used in the nation or elsewhere
in the globe before to the date of submitting a patent application with a complete
specification, nor was it predicted by publishing in any document. It indicates that the
invention has not entered the public domain or contributed to the development of state
art.
4. The restriction from patentability pertains to commercial or mathematical methods,
computer programs as a whole, or algorithms.
Even though the Act's section 3k has an exception, not all software is included. The claimed
invention will not fall under section 3k and will instead be evaluated according to other
patentability standards if its primary component is a computer programme as well as hardware.

7
Sec 2(1) (ac), Indian Patent Act, 1970.
The ability to patent software inventions is generally constrained. For instance, "abstract ideas"
are not covered by U.S. patent law, and this has been used to deny several software patent
applications.
"Computer programmes as such" are not patentable in Europe. A computer programme does not
have the potential to have a "further technical effect" beyond the normal technical interactions
between hardware and software, according to the EPO.
The fact that a computer programme (source code) may not be patentable in and of itself does
not preclude the possibility of patenting a software invention. Examining whether a software
invention provides a technical solution to a technical issue might help determine whether it will
be regarded as patentable subject matter or not. If the software innovation provides a
technological solution to a technical issue, the invention may be taking into consideration a
patentable subject matter. Once patented, a software invention is good for 20 years.
ADVANTAGE OF PATENT PROTECTION OVER COPYRIGHT PROTECTION FOR
SOFTWARE PATENT
A software invention patent can be used to prevent unauthorised use of a specific algorithm or to
stop others from developing software that performs patent-protected features. In contrast,
copyright legislation only shields an idea's expression, not the concept itself. In other words,
copyright cannot prevent the copying of a concept or its functioning, only a specific embodiment
of the idea, such as the source code or a section of it. As a result, patents provide substantially
greater protection.
Patent and copyright protections differ significantly from one another. Below is an illustration of
some of the key differences between these two types of protection.
 Functional components of an innovation are protected by patent law. The concept that is
expressed is protected by copyright. The form of expression, not the idea or concept, is
protected by copyright.
 The moment a work is produced in a definite, physical form of expression, copyrights
take effect. Before something is made public, a patent application must be made
(although some nations give a grace period for filing a patent application after public
publication).
 In contrast to a patent, which has a duration of 20 years, copyright protection lasts for the
lifetime of the author plus 60 years.
Both copyright and patent rules apply to software, but which one is more important depends
depend on the applicant's aim for a specific tactical advantage. The idea behind it and the
possibility of duplication are not protected by copyright, however the source code is. On the
other hand, patents give their holders the power to stop anyone from exploiting their invention,
even if it was independently discovered and no copying was done8.

LEGAL ISSUES AND SOFTTWARE PATENT PROTECTION IN JAPAN

In contrast to other legal systems, Japanese software patents are characterized by the Japanese
Patent Act (JPA) aiming to provide a positive definition of an "invention." The JPA states that an
invention is "a creation of a technical idea utilizing a law of nature," rather than explicitly stating
exclusions such as computer programs per se, as defined in Article 52 of the European Patent
Convention (EPC). As a result, the JPA lacks a list of "excluded subject matters," or topics that
cannot be the subject of a patent. However, the JPO Guidelines and Handbook does contain such
a list for the benefit of practitioners.
In Japan, there were no "software specific" examples until recently, in contrast to other national
or regional experiences. A few intriguing instances just addressed generic patent eligibility,
outlining the fundamental legal prerequisites for an invention to be regarded as patentable and
previously mentioned.
The JPO took on the challenge of defining what kind of protection software inventions should
receive, if any, despite the fact that (and perhaps because of) there being no specific case law
covering software patents.
The first document with advice on computer programme inventions was the JPO Examination
Guidelines from 1976. These regulations were rather rigorous; they specified that programmes
themselves and recording medium storing software were not eligible for patent protection, even
though they did not forbid patent eligibility for computer software in general.
The JPO Guidelines underwent some minor improvements in 1993 and 1997, but the first big
change to the JPO Guidelines didn't occur until 2000. The revised Guidelines state that
regardless of the technology sector or whether a computer programme per se is claimed, an
invention expressed as a series of computer processes can be regarded as a "statutory invention."
8
Invntree, https://www.invntree.com/blogs/software-innovations-patent-or-copyright-what-should-you-file, (last
visited, May 5, 2023)
'Computer programmes' and 'any other set of information comparable to a programme that is
designed to be utilised for computer processing' were added to the list of potential subjects for
'product patents' in the 2002 amendment to the Japanese Patent Act, which is included in Art 2.
This adjustment was made in order to better secure products used in information technology.
As a consequence of this amendment to the JPA, Japan has become one of the few countries
worldwide that explicitly acknowledges the possibility of patent protection for computer
programs. In Japan, computer programs are eligible for "product patents" in addition to "process
patents," distinguishing it from many other jurisdictions. A few lawsuits involving software
patents were eventually decided beginning in the early 2000s.
The concepts outlined in judgements by the Japanese Supreme Court, the Tokyo High Court,
and, starting in 2005, the Intellectual Property High Court, which specialised in IP disputes, were
incorporated into the JPO guidelines.
The LSI Simulator case9 is the first significant decision pertaining to a software patent, in which
the Tokyo High Court explicitly stated that even an algorithm could be patented 10 provided the
relationship between the algorithm and the physical parts of the invention is specified and there
is a concrete interaction between the components.

In the Dental care case11, determined in 2008 by the Tokyo IP High Court and involving "an
interactive network for dental treatment,12" another extremely intriguing ruling was made. Even
though the High Court acknowledged that mental activity cannot be regarded as a statutory
invention in and of itself, it also stated that all technical means have some relationship to human
mental activities "as all technical means are created by humans, assisting, facilitating or
replacing human beings' activities including their mental activities."

9
See Tokyo High Court 21 December 2004, (Gyo-Ke) 188, (2004)
Hanji 1891,139

10
See R. Hirashima, ‘A Note on Patenting Computer Software-related Invention & Assessingthe Requirement
“Utilizing a Law of Nature” Under the Japanese Patent Law – SomethingLike “the Suggestion” from LSI Simulator
Case’ 20
Intellectual Property Law and Policy Journal
,65-94 (2008)
11
See also Intellectual Property High Court 29 February 2008, Hanji, no 2012, 97, 2007(Gyo-Ke) 10239
12
See Intellectual Property High Court 24 June 2008, 2007 (Gyo-Ke) 10369.
Therefore, unless the patentability of such an invention should not be refused on the grounds that
it is not a "invention" within the definition stated in the Patent Act because the invention's
primary focus is on a person's mental operations.
A few years after Dental Treatment, the IP High Court defined "essential nature of the invention"
in the case of Knowledge Base System. The Court held that the 'technical significance' of the
structure described in the patent application is meaningless when the 'hardware' components
mentioned in a patent application are generic computers or recording media and their specific
interaction with the underlying software or database is unclear. In this situation, the invention
was seen as only repeating abstract notions related to generic computers; as a result, even when
examined as a whole, it does not contain any inventions of technical ideas based on natural laws
but merely abstract ideas, making it unpatentable.
This also implies that in order to quickly cross the patent-eligibility threshold, there must be a
significant interaction between hardware and software components, which cannot be boiled
down to the mention of a few physical components in the invention.
A few more pertinent judgements were made after the dental treatment, before and after the
knowledge base system, but none of them introduced any novel or fundamental ideas that called
for changes to the JPO Guidelines. Last but not least, it is important to note that the Examination
Guidelines further emphasise that while determining patent-eligibility,
It is improper to distinguish between the claimed invention's aspects of artificial arrangement and
automation technology; the invention should be understood as a whole.
As a result, the analysis of the inventive step of the invention—i.e., whether or not the invention
is obvious to an expert in the relevant field—becomes the most crucial component of software
patent examination.
In Japan, the innovation is also evaluated at this stage "as a whole," that is, without artificially
dividing it into creative and non-inventive components and, most crucially, without separating
technical components from non-technical ones.
The aforementioned suggests that, for instance, just altering the data that software processes are
likely to be viewed as lacking inventive innovation because the underlying programme and the
way that computer programmes interact with machines are identical.
However, under Japanese law, this could be a patent-eligible invention and, if as a whole the
process was found to be new and inventive, such invention could be considered patentable. This
would happen if a new mathematical formula implemented by a computer process were to create,
as a result, a new and non-obvious process.13

LEGAL ISSUES AND SOFTTWARE PATENT PROTECTION IN UK

The discussion of software patenting in Europe has consistently been characterised by disputes
and controversies. According to the European Patent Convention, an invention must be novel,
subject to industrial application, and entail an inventive step in order to qualify for patent
protection. An invention shall be considered to be new if it does not constitute a part of the state
of the art, according to Article 54 of the EPC.

A further definition of an inventive step can be found in Article 56, which states that an
invention qualifies if, given the current state of the art, it is not evident to a person competent in
the relevant field.

Finally, Article 27's definition of "industrial applicability" is as follows:

If an invention can be produced or used in any industry, including agriculture, it is deemed to be

susceptible of industrial application.

It should be noted that "methods for conducting business" and "computer programmes" are
specifically left out of the list of inventions that qualify for patent protection under Article 52(2)
(c) of the EPC. The European Patent Office has issued more than 30.000 software-related patents
since 1978, despite this express exclusion. 14 This was done in accordance with Article 52(3) of
the European Patent Convention, which states that Paragraph 2 shall exclude the patentability of
the subject matter or activities referred to therein. Only to the extent that a European patent
application or European patent pertains to such subject matter or activities in their own right. As
a result, Article 52 is understood to merely forbid the patentability of software as such.

13
Matteo Dragoni, Software and Patent Law: Reverse Contaminations, Hybridizations and Trends, Observed
Through the Legal Systems of Italy (and the EPC System), Japan, and the United States, The Italian Law Journal,
95, 2018,
https://www.academia.edu/38013267/M_Dragoni_Software_and_Patent_Law_Reverse_Contaminations_Hybridizat
ions_and_Trends_Observed_Through_the_Legal_Systems_of_Italy_and_the_EPC_System_Japan_and_the_United_
States

14
European Software Patent Statistics, available at http://eupat.ffii.org/pikta/namcu/ (last visited, 5th May, 2023)
The European Patent Office has only been able to accept patent applications that seem to be
rejected as computer software inventions because of the existence of this "as such" phrase.

The EPO emphasises the requirement of "technical character" as provided in Rules 27(1)" and
29(1) of the EPC when determining whether the subject matter of an application is an invention
or not. A computer programme must solve a technical problem, have a technical effect, or call
for technical considerations in order to be considered to have technical character.

As an illustration, consider the Viacom case15, in which the Board of Appeal approved the
patenting of a system and device for enhanced digital image processing. In this instance, the
application dealt with a technique for processing digitally stored images. In this case, the patent
was issued on the basis that the claim was made in reference to a technical procedure and did not
seek to protect the mathematical method itself. In actuality, the national courts and the EPO
Boards of Appeal adopted the stance that computer-implemented inventions can be regarded as
patentable where they have a technical character. In fact, the Board of Appeals determined in the
Computer Programme Product I and II instances that a programme on a data carrier may not be
precluded from patentability if it has the potential to have a technical effect when run on a
computer.

In the programme "Controlling Pension Benefit Systems/PBS Partnership," a method for

computing pension benefits was used. The EPO denied the initial application because it violated
Article 52's exclusions for business methods. In response to a challenge, the EPO Board of
Appeal opined that: An apparatus was not specifically mentioned in Article 52(2) of the EPC,
which refers to systems, rules, and procedures as being excluded from patentability.
Nevertheless, an apparatus that represents a physical entity or tangible product and is capable of
performing or supporting an economic activity is considered an invention as defined in Article
52(1). Methods incorporating simply economic principles and commercial practises are not
patent eligible.

As a result, the Board completely disregarded the technical contribution requirement in this case
and came to the conclusion that Article 52(1) of the EPC does not bar the patentability of any
real apparatus incorporating software. In the wake of Pension Benefit Systems, the EPO Boards

15
Viacom Int'l, Inc. v. YouTube, Inc. - 676 F.3d 19 (2d Cir. 2012)
of Appeal gave up on the technical contribution test and instead interpreted the inventive step
criterion as only needing to be satisfied by inventions with a technical character.

In EU it is challenging to draw any broad conclusions about the nature of a technical character
from the cases. By introducing new Directives, the European Commission attempted to
harmonise the state laws in the EU in 2002, however this effort was unsuccessful because the
plan was rejected by the European Parliament. As a result, there are still ambiguities around the
definition of "technical problem" that require clarification.16

LEGAL ISSUES AND SOFTTWARE PATENT PROTECTION IN INDIA

Software patents were intended to be introduced in India via the Patent Amendment Act of 2005.
The proposed changes to Clause 3(k) in the Patent Amendment Act of 2005 included excluding a
computer program per se, unless it is applied technically to industry or combined with hardware.
Additionally, mathematical methods, business processes, and algorithms were also addressed in
the proposed modifications. The Indian Parliament, however, rejected this modification and
opted to keep Clause 3(k) as-is. The arguments in favour of and against software patents were
balanced in the Ordinance. However, it was not possible since the adjustments that were
suggested in the ordinance were not implemented because the ordinance was not made into a
statute.

It is clear from reading the Draught Patent Manual (2008) that its goal is to make technical uses
of software patentable. The guidelines for patents under Section 3(k) of the Indian Patent Act are
explained in Chapter 8.03.05.10 of the Manual of Patent Office Practise and Procedure, which
was accepted in March 2011 by the General of Patents, Designs, and Controller General of
Trademarks. According to these rules, only computer programmes and not mathematical
methods, business procedures, or algorithms are eligible for patent protection. The final patent
manual differs from the draught version in several ways. Provisions listed in the manual's
draught are not acceptable. Since the Patent Act states expressly that computers There are those
who support software patents and those who oppose them. However, software itself is not
patentable.

16
Abhishek Kumar Singh and Surya Kashyap, Software Patentability: A Comparative Analysis, Manupatra, (last
visited May 10,2023), http://www.manupatra.com/roundup/323/Articles/Software%20Patentability.pdf
An essential component of invention is the inventive step of A step towards value addition that is
uncommonly seen in the prior invention and can be regarded as fresh innovation is what is
referred to as an inventive step. In the Indian Patent Amendment Act of 2005, the definition of
"inventive step" was revised, replacing the existing definition. The new Section 2(1) (ja) defined
it as "a feature of an invention that encompasses technical advancements in comparison to
existing knowledge, or holds economic significance, or both, and renders the invention non-
obvious to a person skilled in the relevant field." A country's patent law places a lot of emphasis
on the fundamental test for patentability known as the inventive step. We're all interested in the
effort to redefine this phrase. "Inventive Step" was described in the original Act of 1970 as "a
feature that makes the invention not obvious to a person skilled in the art." The TRIPS
Agreement's Explanatory note to Article 27 (1) specifies that "inventive step" and "non-
obviousness" are interchangeable terms. Numerous legal rulings have established what
constitutes "non- obviousness" as a requirement for patentability.

According to the Indian Manual of Patent Practise, inventive step, also known as non-
obviousness, is a quality of an invention that incorporates technical advancement in comparison
to the state of the art or has economic relevance or both, rendering the invention obscure to a
person of ordinary competence in the art. Here, the term "inventive step" has been expanded to
encompass the invention's economic importance. The following consideration needs to be kept in
mind when evaluating the inventive step: "Would a non-inventive mind have thought of the
alleged invention?" The invention is non-obvious if the response is "No". The prior art must
include any prior publications in the relevant field for the purpose of determining inventive step.

The Indian Supreme Court debated inventive step and invention obviousness in Bishwanath
Prasad Radhey Shyam v. Hindustan Metal Industries17. The Court ruled that the fundamental
tenet of patent law is that only novel and beneficial inventions are eligible for patent protection.
It must therefore be both unique and useful. It is crucial for a patent to be the inventor's original
discovery rather than merely a confirmation of what was already known prior to the grant date of
the patent. The determination of "inventive steps" must primarily be based on the case's facts
because it involves both legal and factual issues.

17
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries AIR (1982) SC 1444.
The processes for regulating a wind turbine based on ambient conditions outside were examined
in Enercon India Limited, Daman v. Aloys Wobben18, Germany by the Intellectual Property
Appellate Board. This invention used automatic control devices like computers to control the
wind turbine. The board stated that since the innovation cannot be viewed as a computer
programme per se or a set of operational guidelines like algorithms, it is not patentable.

LEGAL ISSUES AND SOFTTWARE PATENT PROTECTION IN US

In contrast to the EPC and Italy, but similarly to Japan, the statutory law of the United States has
never included a specific enumeration of 'excluded subject matters,' which are categories of
inventions or non-inventions ineligible for patent protection. Consequently, the US Patent Act
does not explicitly exclude 'software patents.' Nevertheless, a more general set of excluded
categories has been established through a series of judicial precedents, although it is less detailed
compared to the EPC.

We had to wait until the 1970s to see the emergence of judicial precedents that specifically
addressed software patents. The first notable case in this regard was Gottschalk v. Benson19,
which revolved around a method for converting binary-coded decimals into pure binary
numerals. The US Supreme Court concluded that the invention lacked a specific association with
any particular machine, apparatus, art, or technology. Instead, it was deemed to be merely a
mathematical calculation that humans could perform mentally without the aid of a machine, thus
rendering it ineligible for patent protection.

Initially, US courts were sceptical of software patenting, deeming software to be essentially

mathematical formulas and thus not eligible for patent protection under US law. However, the
position changed after the Diamond v. Diehr case20, in which the court held that the invention
should be considered as a whole, and patent protection should not be denied solely because it
involves mathematical formulas. Nevertheless, two exceptions continued to be upheld: the
exception for mathematical algorithms and the exception for business methods.

In the Diamond v. Diehr case, the patent application involved an improved method of curing
rubber that utilized a computer to calculate the proper curing time based on a known formula.

18
Enercon India Limited, Daman v Aloys Wobben, Germany, M.A.P. No. 8/2010, 36/2010 and 59/2010 in ORA
No. 20/2009/PT/CH and ORA No. 20/2009/PT/CH decided on 18th November 2010.
19
Gottschalk, Commmissioner of Patents v. Benson ET AL. 409 U.S.63
20
Diamond v. Diehr, 450 U.S. 175 (1981)
The court concluded that the patent claim described an industrial process of curing rubber,
falling within the scope of the Patent Act, and it did not seek to monopolize the use of a
mathematical formula. Therefore, the inclusion of a computer program and a mathematical
equation did not render the subject matter non-statutory.

Following the Diehr case, the Court of Custom and Patent Appeals (CCPA) introduced the
Freeman Walter Abele21 test, a two-step test to assess the patentability of inventions involving
a mathematical algorithm.

The first step involves determining whether a mathematical algorithm is directly or indirectly
recited in the claim, and the second step examines whether the algorithm is applied in any
manner to physical elements or process steps. If both steps are satisfied, the claimed invention is
deemed patentable. However, there has been inconsistency in the application of these tests.

The court out right rejected the applicability of the Freeman Walter Abele test, stating that it held
minimal, if any, relevance in assessing the existence of statutory subject matter following the
Diehr and Chakrabarty cases.

From the case law, it is evident that software must demonstrate a practical application and go
beyond the manipulation of abstract ideas to be eligible for patenting. This requirement aims to
limit patent protection to inventions that have a tangible impact in the real world.

Case law clearly indicates that for software to be eligible for patenting, it must serve a practical
purpose and go beyond being a mere manipulation of abstract ideas. The purpose of this
requirement is to limit patent protection to inventions that have tangible real-world value, rather
than ideas or concepts that lack practical application or are mere starting points for future
research.

The Examination Guidelines for Computer Related Inventions provide further guidance, stating
that a claimed computer-related process must either result in a physical transformation outside
the computer with a practical application in the technological arts, or be limited to a practical
application within the technological arts.

According to the Examination Guidelines, there are two types of processes considered statutory
subject matter: Post-Computer Process Activity and Pre-Computer Process Activity. Post-
21
In re Freeman, 573 F.2d 1237 (C.C.P.A. 1978)
Computer Process Activity involves independent physical acts outside the computer following
the completion of internal computer program steps, while Pre-Computer Process Activity
involves independent physical acts outside the computer before the completion of internal
computer program steps. Processes falling into these categories are clearly eligible for patent
protection. On the other hand, claims that consist solely of mathematical operations without
practical application or simply manipulate abstract ideas without practical application are
deemed non-statutory.22

The United States is known for its liberal system regarding software patenting, and numerous
cases have affirmed the patentability of software. For example, computer algorithms unrelated to
mathematics, algorithms related to hardware operations, and processes or apparatus that
incorporate computer programs as part of the overall invention have been found patentable.

LEGAL ISSUES RELATED TO SOFTWARE PATENTS IN CANADA

Software patents have been a contentious issue in Canada for some time, and their legal status
has changed and been interpreted in many ways.The question of whether software may be
patented has been up for dispute on a global scale for at least 15 years. Despite being bound by
international laws, which deal directly with the patentability of software (TRIPS), individual
countries continue to justify vastly different legislative and practical patent regimes in this field
of innovation23. In a very conventional and conservative manner, Canada has carefully handled
the line in this discussion, taking a stance that lies halfway between that of the United States and
Europe while offering nothing in the way of useful advice for businesses, solicitors or software
developers in the sector. In the past, the Canadian Intellectual Property Office (CIPO) treated
software patents more strictly than in other countries, such as the United States.The term
"patentable subject matter" does not apply to software in Canada. However, software-related
ideas with a technological solution to a technical issue could qualify for patent protection. In
Canada the Patent Act provides the legal mechanisms through which patents are reviewed,
granted and protected.24 Patent law is viewed as a bargain between inventors and the state – in

22
Abhishek Kumar Singh and Surya Kashyap, Software Patentability: A Comparative Analysis, Manupatra, (last
visited May 10,2023), http://www.manupatra.com/roundup/323/Articles/Software%20Patentability.pdf

23
Seaman, Conrad Delbert. "Contextualizing the Software Patent Debate in Canada: A Practical Approach to Policy
Development." Osgoode Hall Review of Law and Policy 3.1 (2014)
24
Canadian Patent Act, R.S.C. 1985, c P-4.
exchange for the inventor’s full disclosure of the invention, the inventor is given an exclusive
right to prevent others from making, selling, or using the invention for a fixed term. This bargain
is viewed as a way to “...stimulate the creation and development of new technologies” 25.
Software patents are not a distinct type of patent in Canada; rather, the phrase generically
designates inventions that make use of or are connected to computer software. As a result,
software patents still need to pass the standard requirements for statutory subject matter, novelty,
creativity, and usefulness. In this innovation-related sector, these fundamental components pose
some particular difficulties. Most of the time, innovation is considered by Canadian patent
examiners as necessitating a thorough search of the databases of the U.S. Patent and Trademark
Office (USPTO). While prior-art searches should be carried out further, the expense and time
constraints of patent exams typically prevent this from happening. The USPTO is acknowledged
as the greatest prior-art resource in the world.

Given that a software program's end result is typically intangible, challenges are further created
by the Canadian patent law's ambiguity about usefulness. In contrast to industrial patents, where
the monopoly is held against a manufacturing process, a software patent is held against a
technique or mathematical implementation of a notion. Anyone with access to a home computer
may make use of these concepts. This raises the question of whether or not patents, which were
created to encourage industrial innovation via financial incentives, play any part in limiting
people's behaviour.

The Canadian software business doesn't know how to proceed without clear guidance from its
legal counsel. The procedure of obtaining a patent is costly, thus businesses are reluctant to seek
this kind of IP protection in the absence of clear rules. The situation is made worse by the fact
that businesses may still operate under the impression that this is the law because Canada has
long excluded software from patentability. The issue is made worse by the fact that businesses
and their legal counsel are prohibited from discussing the consequences of software patentability
in other nations, such as the U.S. and EU, due to the impact of local misunderstanding on the
subject matter as a whole.

25
David Vaver, Essentials of Canadian Law: Intellectual Property Law: Copyright, Patents, Trademarks (Concorde
Ontario: Irwin Law Concorde Ontario, 1997) at 113
The aforementioned proves that there are significant conceptual issues with merely extending
current patent law definitions to computer software. Canada is not the only country striving to
acknowledge these conceptual challenges. However, this leads to a conflict between how patent
rules are treated in legislative, real-world, and judicial settings when they pertain to computer
software. Given how difficult it is to comprehend Canada's stance on software patents, it should
not be surprising that this has a significant practical impact on a wide range of software industry
stakeholders. The straightforward application of conventional patent law concepts to computer
programmes raises problems. It was discovered that Canada has an unclear and unproven
position on the patentability of software after examining the impact of these issues through the
country's current statutes and regulations. Numerous business stakeholders and legal experts are
severely impacted by the disagreement between legislative, judicial, and practical approaches to
software patenting. Therefore, it would seem that the onus of upholding MoPOP's directives
would lie disproportionately on Canada's legislative and judicial branches to make the issue
clearer. Investigating the approaches and achievements of other nations with regard to software
patentability would seem beneficial when making these policy decisions.

It was initially believed in the early 90’s that the introduction of software patents would shut
down innovation in the software industry or concentrate power in the hands of only a few
companies. Empirical evidence over the last 15 years suggests this simply hasn’t happened –
innovation and new market entrants continue to abound. 26 First-to-market advantages are a
further component of the larger economic impact created by software patents. The concept of
first-to-market, also known as network effect, refers to the tendency in software for the first
innovator with a publicly released product to become the market leader27.

According to the preceding analysis of theory and practise in the Canadian context, corporations
in Canada stand to gain little from the use of software patents as investment, investment, or
defence strategies. Although it is always challenging to provide a definitive response, the
existence of software patents does not seem to have a significant influence on the fundamental
topic of innovation. The adverse risks of patentability to the Canadian software sector are what
have really stood out from this realistically based exercise. The public articulation and
26
“The League for Programming Freedom - Against Software Patents”, Letter to
USPTO, USPTO (24, October, 1990).
27
James Bessen & Robert M. Hunt, “An Empirical Look at Software Patents” (2007) 16 Journal of Economics and
Management Strategy 157 at 171.
propagation of this perspective, which goes beyond just establishing a clear position on
patentability, is crucial to the development of Canada's software sector. Because code may be
written using easily accessible tools, software patentability has an influence on individual
developers and low level developers. Industrial patents, in contrast, are typically more
challenging and expensive to implement. As a result, there is a higher danger of exposure to legal
action and infringement among the general population. Therefore, education on these issues is
just as crucial as making the final judgements.

Notable Case: Amazon.com v. Canada (Commissioner of Patents) (2011)28 In this case, the
Federal Court of Canada held that a method for processing online orders was patentable subject
matter as it involved more than just abstract ideas and had a practical application, despite its
implementation through software.

Problem-Solution Approach for Non-Obviousness: To be patentable, an invention must also be

non-obvious to a person skilled in the field. In the context of software, the problem-solution
approach is often used to assess non-obviousness. This approach involves identifying the
technical problem addressed by the invention and determining if the solution would have been
obvious at the time of filing.

Notable Case: Schlumberger Canada Ltd. V. Commissioner of Patents (1981) 29 This case set
the precedent for the problem-solution approach in Canada. It established that to be patentable, a
software-related invention must solve a technical problem that is not obvious to a skilled person
in the field.

Legal issues related to software patents can vary across different countries. Here's a
comparison of some key aspects related to software patent laws in India, the United States
(US), the United Kingdom (UK), Japan, and Canada:

INDIA  Patentability: In India, software per se is not patentable. However,

software-related inventions that have a technical effect or
demonstrate a technical advancement may be eligible for patent

28
Amazon.com v. Canada (Commissioner of Patents), [2011] 2 SCR 362, 2011 SCC 66
29
Schlumberger Canada Ltd. V. Commissioner of Patents, [1981] 1 SCR 845
 protection.
 Section 3(k): Section 3(k) of the Indian Patents Act explicitly
excludes "mathematical or business methods" and "computer
programs per se" from patentability. However, if the software is
combined with a novel hardware element, it may be considered
patentable.
 Examination Guidelines: The Indian Patent Office has issued
guidelines for the examination of computer-related inventions,
providing specific criteria for patentability.

USA  Legal Provision: In U.S. law, the section specifically related to

software patents is Section 101 of Title 35 of the United States
Code, which defines the subject matter eligible for patent
protection.
 Patent Eligibility: In the US, software patents are generally allowed
if the invention demonstrates a practical application and goes
beyond an abstract idea. The Supreme Court's Alice Corp. v. CLS
Bank decision established a two-step test to determine eligibility
for software patents.
 Patentability Criteria: Software must meet the requirements of
novelty, non-obviousness, and utility to be patentable. Specific
guidelines and examination procedures are provided by the United
States Patent and Trademark Office (USPTO).

UK  Legal Provision: In the United Kingdom, the specific section

related to software patents can be found in Section 1(2) of the UK
Patents Act 1977.
 Technical Effect: The UK considers software inventions to be
patentable if they have a "technical effect" and provide a technical
solution to a technical problem.
 Computer Programs "As Such": The UK patent law excludes the
 patentability of computer programs "as such." However, if a
software invention goes beyond a computer program and has a
technical character, it may be eligible for patent protection.

JAPAN  Patentability of Software: Japan allows software patents if the

invention has industrial applicability, novelty, and involves an
inventive step. However, abstract ideas and mathematical
algorithms are not eligible for patent protection.
 Legal Provision: Section related to software patents in Japanese law
is Section 2, Article 29(1) of the Japanese Patent Act (Act No. 121
of 1959), which pertains to inventions involving computer
programs. This section states: "An invention which is a computer
program shall be patentable if it is so devised as to produce a
technical effect by utilizing the functions of a computer."
This provision implies that for a software-related invention to be
eligible for patent protection in Japan, it must demonstrate a
technical effect or provide a technical solution by utilizing the
capabilities of a computer. It emphasizes the requirement for the
invention to go beyond mere software implementation and have a
practical application that utilizes the functionalities of a computer.
This provision sets the criteria for patentability of software-related
inventions in Japan.
 Patent Examination: The Japan Patent Office (JPO) examines
software patents based on guidelines and criteria specific to
computer-related inventions.

CANADA  Patentable Subject Matter: Canadian law allows software patents if

the invention meets the criteria of patentability, including novelty,
utility, and non-obviousness. However, abstract ideas and pure
algorithms are not considered patentable.
 Examination Practice: The Canadian Intellectual Property Office
 (CIPO) examines software patent applications based on specific
guidelines and considerations, including the requirement for a
practical application of the invention.

It's important to note that patent laws can evolve, and interpretations of software patentability
can vary within these countries based on court decisions and legislative changes. Consulting with
a qualified patent attorney familiar with the laws of the specific country is recommended for
accurate and up-to-date advice.

CONCLUSION:

In conclusion, the article highlights the impact of software patenting difficulties on the software
industry and emphasizes the importance of protecting software's intellectual property. The
ongoing global discussion regarding the role of software patents in encouraging or impeding
innovation within the software industry is explored, taking into account the perspectives of two
schools of thought and current trends in the software sector.

The article recognizes the differences in approaches to software patentability among nations such
as India, the United States, the United Kingdom, Canada, and Japan. These differences have led
to disagreements and a "software patent war" due to conflicting techniques and opinions on
whether software should be patentable. Consequently, concerns about technology protection,
enforcement, and business expansion have arisen.

The historical context of the software industry is discussed, highlighting the separation of
software from hardware in the 1960s and the subsequent rise of independent software vendors
and the widespread adoption of personal computers in the late 1970s and 1980s. The complex
nature of software as both input and output in an industry heavily reliant on intangibles
underscores the significance of software intellectual property protection. The debate on software
patenting and its effects on the software industry is then presented, with two opposing schools of
thought—one in favour of software patents and one against them. The justifications for software
patenting are discussed, leading to the formulation of a third perspective that takes both sides
into account.
The article concludes by examining the positions of India, the United States, the United
Kingdom, Canada, and Japan on software patenting. The implications of a robust software
patenting regime for these countries are analysed, considering their individual contexts and
current trends. The conclusion of the article provides a comprehensive understanding of the
current state of patent law and practice regarding computer-related inventions in the
aforementioned nations.

Overall, the article sheds light on the ongoing discussions and debates surrounding software
patents, emphasizing the need for careful consideration of the implications and potential
consequences for the software industry. It underscores the importance of finding a balanced
approach to software intellectual property protection that encourages innovation while
addressing concerns related to enforcement, market competition, and business growth.

SUGGESSION:

 Finally, after going through the whole research paper and comparing the two schools of
thought along with the recent scenario in software industries for some countries favouring
and granting patents and some countries not granting patents,
 we have come to the suggestion that the interpretation of granting patents vary from
country to country.
 Different countries follow different legislation based on the that particular legislation,
patent is granted on a particular software.
 Indian Approach to software patenting if we see is more restrictive as compared to other
countries.
 In Canada the eligibility of software for patent protection is its useful application and
must have a technical solution to a technical problem
 Japan is traditionally open to software patenting, software will only be granted patent in
japan if it meets the requirement of novelty, inventiveness, and industrial applicability.
 United Kingdom, has a more permissible stance as compared to other European
countries, software patent can only be granted if the invention provides a technical
solution to a technical problem.
 Lastly, if we see U.S., It has granted patents vigorously over the years, in U.S., software
can be eligible for patent protection if it meets the requirement of novelty, non-
obviousness and utility.

Finally, I would like to conclude by saying that a minimum patentability criterion should be
maintained in every country, neither too strict nor too lineant, and software should be granted
patent protection, because it not only encourages researchers to come up with new innovative
technologies but all improves the economic condition of the nation, resulting in increase in
trade and commerce in the nations and also trying to be less dependent and reliable on any
other country’s technology.