India's Controller General of Patents, Designs and Trademarks (CGPDTM) seems to has taken a U-turn on the patentability of Computer-Related Inventions (CRI). Its recently published guidelines for examination of CRIs appear remarkably restrictive.
Some examples:
"If these system/device/apparatus claims are worded in such a way that they merely and only comprise of a memory which stores instructions to execute the previously claimed method and a processor to execute these instructions,then this set of claims claiming a system/device /apparatus may be deemed as conventional and may not fulfil the eligibility criteria of patentability."
and
"If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability."
The new recommendations appear to be out of touch with reality. In the year 2016, every reasonably advanced new product has a similar and rather generic hardware system architecture. A mechanical structure, a processor, a memory, an I/O-device allowing the processor to control internal electro-mechanical functions and connect with the outside world through sensors, communication means or various interfaces. This is true for virtually any imaginable product; a refrigerator, a camera, a vehicle, an industrial device, a baby's toy etc.
In fact, for all such products, through human thought processes, ideas that solve various real-world problems and improve the utility of the product as a whole are regularly developed and implemented in the processor. As a result of such innovation, new products can be created with new or improved capabilities that make them attractive in the marketplace. Why should such innovation suddenly not deserve the right to be legally protected in India?
If the CGPDTM has it's way, the incentive for technological product innovation will likely be broadly curtailed, except perhaps in relation to very low-tech electro-mechanical products, purely mechanical products and pharmaceuticals. The Indian prime minster's goal of a prosperous India built on Indian hi-tech entrepreneurship could be made unreachable. Sadly, the GGPTDM appears to be on a path to move India backwards.
In the EU and the US, software code per se is indeed non-patentable, and is generally protected by copyright. But devices including technical solutions implemented in software that are novel, non-obvious and have industrial applicability are rightly patentable without stringent hardware restrictions. The US has been only slightly more restrictive but has been steadily aligning itself with the EU position.
Indeed, only last year also the CGPDTM held a CRI position similar to that of the EU. But apparently something happened very recently to change its mind. Some newspapers have reported on some lobbying. If true, it would be very sad indeed as such lobbyists clearly wouldn't have India's future interests at heart.