INTRODUCTION

In India, the Patent Amendment Act 2005 sought to introduce software patents. The amendment proposed in the Patent Amendment Act 2005 for Clause 3(k) was, “a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms.”

The Indian Parliament, however, rejected this proposal and decided to keep Clause 3(k) exactly as it is. The Ordinance made an effort to weigh the reasons in favor of and against software patents. However, it was not feasible because the recommendations made in the ordinance were reversed and the law was not turned into a legislation.

Numerous courts attempted to address the question of whether a software invention was abstract by developing a number of tests to assess if an invention relating to computers may be patentable. However, as of right now, there isn’t a validated test, set of guidelines, set of practices, or set of rulings that can establish patent eligibility.

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The Indian Manual of Patent Practice states that an invention must be new in the sense that it constitutes an improvement over existing knowledge in technology, useful and non-obvious to a person knowledgeable in the arts. There have also been developments where the term inventive step has been extended to include aspects of economic utility of the invention. It is therefore advisable to remember the question “Would a non-inventive mind have thought of the alleged invention?” when considering the inventive step. If the response is negative, then the invention cannot be considered an obvious one. The previous publication in a pertinent field shall refer to the inventive step as prior art..

The Indian Supreme Court examined the issue of inventive step and obviousness of the innovation in the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries. The Hon’ble Court held that the underlying principle of a patent grant is that it shall be for a new and useful invention. It must be novel and have utility. It clearly means that capacity or viability of a particular patent is considered based on what the inventor actually discovered, not just because of the validation that is provided by scientific facts which already existed at the time when the patent was given. This involves the legal question of who is entitled to the inventive step, and the factual question of who actually made the inventive step and therefore deserves the patent protection.

In the case of M/s Aditi Manufacturing Co. v. M/S. Bharat Bhogilal Patel (2012), the India Intellectual Property Appellate Board (IPAB) revoked the granted patents regarding the lack of inventive step and the fact that all of the mentioned claims and the corresponding specifications relied upon the newly discovered information. The board noted that none of the features asserted to be novel in this invention is unique; it has been in the prior arts. There is no new element and no work involved because the invention was already known.

In Enercon India Limited, Daman v Aloys Wobben Germany, The Intellectual Property Appellate Board considered an innovation that included instructions for using automatic control units to adjust a wind turbine in response to outside environmental conditions Just like the PCs. The board stated that the invention is not undesirable from the standpoint of patentability since it cannot be viewed as a computer programme in and of itself or as a collection of procedural rules like algorithms.

Comparative Analysis

A Comparative Study of Indian Patent Law and International Standards

Legal Framework in India:

Novelty:

As stated in Section 2(1)(l) of the Indian Patents Act 1970, patents have to meet novelties to be granted in India.

According to the provisions of the Act an invention is considered to be new if such invention has not been disclosed to the public, anywhere in the world or has not been used in any public arena in India or elsewhere, up to the date of filing of the application for grant of patent.

Therefore, It may be challenging to define the scope of previous work in rapidly evolving areas such as Virtual Reality and the Metaverse with regards to Metaverse, Virtual Reality, and Software Innovations. In the course of assessing patents, examiners of patents are supposed to establish whether or not the invention claimed was unique in the context of developed technology and provided disclosures.

Step of Innovation (Non-Obviousness):

According to the Indian Patents Act, innovative step has been defined under Section 2(1)(ja). With respect to inventive step, a person skilled in the art and coming to a certain line of approach will not be able to discern an invention during the implementation process providing that the invention is not evidence on the face of the information available to him to exhibit the inventive step.

Under the Act, there is no person having expertise in the sector or business where the innovation is used, should be able to scrutinize it easily.

Regarding Metaverse, Virtual Reality and Software Innovations: and any other inventions in this kind of area with respect to current state of the art knowledge in such field: The question to be asked is whether the claimed invention embodies a non obvious technical advancement. In the course of the examination of a patent, this is often an assessment which can be impressionistic and may require the opinion of an expert.

Industrial Relevance:

Patents Act of India defines it in Section 2(1)(ac), the industrial application. If an innovation can be made or applied in any industry or in any segment such as agricultural industry, then it is considered as industrial relevance.

All the applications relating to the Metaverse must give a theory of how the invention could be practically applied in the real industry by showing how it could be useful.

As much as it is important to keep it in mind, the patentability requirements are absolute in all the technical fields, software, virtual reality, and even metaverse. The assessment involves having into consideration the exact technical characteristics for the invention Understood pursuant to law, as well as the manner in which the invention contributes to the development of the state of art.

Exceptions

A brief discussion is given below on the Indian Patent Act Section 3:

The type of innovations that is not recognized by patent is enumerated under Section 3 of Indian patent act. This includes such discoveries as those that are against the law, foolish, obvious, those that relate to atomic energy and conventional knowledge.

Other exclusions are also laid down in the subsections of section 3. For example, ‘a mathematical or business method or a computer programme; as such or algorithms’, are not permissible under section 3(k).

SOFTWARE AND BUSINESS METHODS EXCLUDED

In reaction to this, one of the features that have characteristic the Indian Patent Act is exclusion of business procedure and software per se. This is in line with the current trends in patentability of such fields across the world.

The exclusion of software per se may bar the grant of a patent in respect of pure computer programmes, which contain little or no technological application or innovation step.

The Metaverse integrates various technologies such as virtual reality, augmented reality smart devices and even artificial intelligence. Metaverse can innovations be commercial practises, software, or algorithms.

Technological innovation, which may be related to Metaverse, may be excluded under the provision of Section if that is just the software or business strategy which does not possess any unique innovation in it.

BUSINESS PRACTISES AND SOFTWARE NOT INCLUDED

This is perhaps one of the main features of the Indian Patent Act that discourages protection of software and business processes. This coincides with the current debate around the world concerning the patentability of these disciplines.

The non-patentability of software itself may avoid the patenting from core binary or pure computer programmes with no distinct technical use or further creativity.

IMPACT ON METAVERSE-RELATED INVENTIONS

It is actually the blending of Virtual Reality, Augmented Reality, Artificial Intelligence and many others. Some of the metaverse inventions include algorithms, software, and commercial practises.

If an invention referring to the Metaverse is purely software or a commercial technique and it does not provide a new technological feature to the same, it could be left out under the Section.

Author : Shalini Puri, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.