The American approach is very liberal towards patenting softwares. It follows the “Machine or Transformation Test” wherein inventions in relation to softwares are patentable as long as it is capable of transforming the input into a useful output. On the other hand, Europe and UK follow practice the “Contribution Approach” to determine whether a Software is patentable based on its technical contribution. If yes, the novelty and inventive step would follow. The image processing software by Vicom(1984) was patent granted. Similarly the sound processing software by Toshiba in 2014 was also granted.
Indian Position
India has as conservative approach as that of the English and European union. In India, a software can be given protection as “literary works” under the Indian Copyrights Act but the concept of it is not patentable, which forms the core part of its commercial value. Software patents are a potent threat to both open standards as well as FOSS. While in India, pure software patents i.e., a patent over a "computer programme per se" are not allowed, still software patents are to be reckoned with. The draft patent manual prepared by the Patent Office in 2008 seemingly goes against section 3(k) of the Patents Act, and allows partially for software patents. It states that “a mathematical or business method or a computer programme per se or algorithms are not inventions and hence not patentable.” Patent applications, with computer programme as a subject matter, are first examined with respect to mathematical process, business process or algorithms. If the subject matter of an application does not fall under these categories, then, the subject matter is examined with a view to decide whether it is a computer programme per se. If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention. If the subject matter of a patent application is not found excluded under the foregoing provisions, it shall be examined with respect to other criteria of patentability.
While there has been substantial discussion on how patents will affect the pharmaceutical sector, there has been little debate about its implications on the software industry. However, with a growing software industry which is trying to spread its indigenous roots, the issue becomes an important one. The Indian Parliament scrapped its ordinance in 2005 that said “software in combination with hardware”. The patentability of a software driven invention is very ambiguous and controversial.
