The fast-paced development of the software industry has made it necessary to protect the intellectual property vested in the software programmes and the technical machinery using such software programmes. Software is a set of decrees that commands the operation of a system to perform an individual task or to achieve a particular result and it is intangible in nature. Unlike traditional products, when the software is sold, the buyer gets a license to use the software along with any applicable rights indicating the events and don’ts for the licensee.  The aggressive nature of the software market makes it vulnerable to piracy or being copied. This requirement the protection of the software under Intellectual Property Laws.

Software Patents is Dead or Alive?

Software patents have been a controversial argument for patent laws across the world. Many countries either choose not to grant patents on software at all – such as India, or organizations a difficult regime as has been done in the European Union. The United States is, however, the most open and relevant jurisdiction where patents relating to software have thrived and driven a large section of economic development. From global giants such as Google and Facebook to patent trolls, like Intellectual Ventures, software patents have driven a large block of their patent portfolio and consequently, their development. A spanner was fell into the world of software patents by the United States Supreme Court in the form of Alice v. CLS Bank case. Much has been discussed about the effect of the case and it has comprehensively commuted the approach of many companies globally. Since this case, the Federal Circuit Court and the district courts have had the definite responsibility of operating within the bounds of the Supreme Court judgment, while trying to keep the possibility of recognised patents on software alive. Since 2014, there have been several about-turns with courts either leaning towards validity of certain software patents and other courts simply slam them down. Two major cases in the past six months have been created the difficulties the murky zone in this respect. The first is Intellectual Ventures v. Symantec (“Intellectual Ventures”) case, of which the most relevant takeaway is Justice Haldane Mayer’s concurrence. While it was mentioned to in Alice, the first amendment argument against software patents had not been used this forcefully by a judge before. Essentially, the defence states that granting patents for software stopped the right of free speech software is undoubtedly also a form of literary work. In his decision, Justice Mayer declared that Alice decision should be taken to mean that software itself is not patentable. He also held that software is inherently theoretical because it is only an idea without physical personification. Justice Mayer, in analyzing 35 United State Currency is 101 dollars, stated that the courts have carved out certain subjects as being outside the scope of patentability so as to safeguard freedom of expression. In particular, theoretical ideas and mental process have been found too frightening to the free interchange of ideas to permit them to be locked up in patents. Justice Mayer expresses that, “most of the First Amendment bother related to patent protection could be ignored if this court were capable to acknowledge that Alice sounded the death knell for software patents. “Justice Mayer explains – “software lies in the antechamber of patentable establishment. Because generically-appliance software is an ‘idea’ insufficiently linked to any defining substantial structure other than a standard computer, it is a precursor to mechanization rather than robotics itself”; and it concludes with “all software appliances on a standard computer should be deemed categorically outside the bounds of section 101.”Justice Mayer faced a lot of backlash from a large lump of the patent community because his views were considered as being opposed the very fabric of patent law. However, institutions such as the Electronic Frontier Foundation (EFF) found validation in the judgment and fully support his views. It is necessary to note that this is only a concurrence and not a maximum opinion, which at least left the door open in that it is not binding, settled law. This brings us to the against end of the spectrum – just a month after the Intellectual Ventures case – in Amdocs (Israel) Ltd. v. Openet Telecom Inc. (“Amdocs”). The majority in Amdocs highlights that the concept of a defensible idea has no set meaning. According to the majority, there cannot be “an individual universal definition of ‘defence idea’” because “it is thought to fashion a workable definition to be necessary to as-yet-unknown inventions.” Instead, the court held that it must be determined whether a patent is directed to a defensible idea by comparing the claims at issue with prior cases intervene in similar claims. The court stressed on the discovered of an “enhanced” solved by the invention, which goes over and beyond the defence idea concept.

One most important aspect was the emphasis on claim construction, which uses a plethora of tools accessible during patent prosecution to interpret the claims. This will most certainly be an appropriate crutch used by proponents of software patents and software patent applicants. Practitioners may be well suggest to emphasize improvements and concurrently involve a complete description of the technical problem and the solution in the specification. It goes without saying that Amdocs stresses on demand a combination of structural elements that is beneficial over the prior solutions. As with Intellectual Ventures, there was an expressed dissent opposed the majority, based on the fact that the majority had glossed over the first step of the Alice test – resolving whether the claims are directed to a patent-ineligible concept. With the number of high-stakes players intervene, both within the United States and internationally, the growing dissent between the interpretations of Alice in different arguments are soon going to force the United States. Supreme Court to take a stand in their own circumstances. A case must be appreciated to finally set the record straight, and spell out whether software patents should be to be allowed in any form and if so, what needs to be done beyond a cursory acceptance of the pre-Alice recital of “a non-transitory computer-readable medium” to gain patentability or dangling off the high arbitrary threshold of evading an “defence idea”.


In this to conclude that it will depend on the nature of software to be safeguard, the applicant can either choose for Copyright or Patent. If it is purely a computer programme aimed at performing a particular task or bring out a particular result, it can only be copyrighted. Though the Patent assurance more secure protection, the software can qualify for the grant of a patent only if it has a hardware restriction.

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