Patentability of Software-Related Inventions in Sri Lanka, UK and USA

PATENTABILITY OF SOFTWARE IN SRI LANKA

There are certain countries that use patents to protect software when considering the various international IP systems. The current Sri Lankan IP legislation, however, neither specifically acknowledges nor excludes software's patentability. Part IV of the Intellectual Property Act No. 36 of 2003 contains Sri Lankan law pertaining to patents. Invention is defined as "an idea of an inventor that permits in practice as the solution to a particular problem in the realm of technology" under Section 62(1) of the Intellectual Property Act. Additionally, it acknowledges that inventions that relate to products or processes can be protected by patents. Section 63 of the IP Act clearly defines the prerequisites for awarding a patent. First requirement is Novelty. Second is creative move. The third is industrial applicability. which means, if an invention is novel, possess an innovative step, and has industrial use, it qualifies for patent protection. Considering this, if one discovers a technological solution to a problem that satisfies the legal requirements in Section 63, it is patentable. But does computer software fulfill these requirements?

It is clear from a close examination of the software development process that the computer programme contains a technical solution to a legal problem that qualifies for patent protection. The first step in creating software is identifying the issue and outlining the procedures to fix it in plain language that anybody can comprehend. The steps can alternatively be represented by an Algorithm, a rather technical viewpoint. The algorithm is then programmed in the chosen high-level language. It also offers a technical answer to an issue. It is essentially patentable because it can be duplicated and utilised as the entirety or a component of the solution to another challenge. If just a literary work is copied, it can be considered copyrightable.

However, not all software would qualify for patent protection, as the patentability standards would remain in place. It is evident from an analysis of Sri Lankan law that, in comparison to other patent regimes, Sri Lankan patent law is still in its infancy. It was also challenging to determine whether software qualified as a patentable subject matter due to a lack of court interpretations of patent law. It is acknowledged that further development of Sri Lankan law is required in order to expand the scope of patent protection to include software.

PATENTABILITY OF SOFTWARE IN UK

To the degree that a patent application refers to a software program as, "programmes for computers" are not patentable under United Kingdom Patent Law. In re Astron Clinica Ltd., filed in February 2008, involved six applications that claimed to be "a way of doing" and "a device of doing it" by operating a computer that had been appropriately designed. Specifically, the application that implements a method. These applications were denied by the United Kingdom Intellectual Property Office. In accordance with UK legal guidelines, "An invention is regarded to give a contribution that is not excluded, and which is also technical."

The Patent Act of 1977, the main source of UK patent law, stipulates that in order for an invention to be patentable, this should adhere to the three requirements. Uniqueness, originality, and potential for industrial application. A few things are excluded from patentability according to Section 1(2) of the Patent Act. According to the Patent Office's Manual of Patent Practice, these include "a framework, rule or method for doing a mental act, playing a game or conducting business, or a computer programme," but it also states that "a matter is not avoided from being considered as an invention simply because some of its integer fall into excluded category."

The Court of Appeal examined the UK's patentability of computer programmes in the application of Merrill Lynch’s case. An information processing system for creating a market for trading securities was the subject of the application in the lawsuit. The court decided that a subject excluded from patentability by section 1(2) could relate the inventive step necessary to make an invention patentable; However, there must be a technical outcome or technical involvement which is made to the existing product. The situation of software patenting at the UKPTO right now is not entirely clear.

PATENTABILITY OF SOFTWARE IN USA

As a collection of mathematical methods in the early years of the computer industry, software was considered unpatentable by the US Patent and Trademark Office. Particularly, it is believed that the ruling in Gottschalk v. Benson is adverse to software patents. For use with a general-purpose digital computer, the inventor described a technique for transforming binary-coded decimal numerals into pure binary numerals.

The invention was deemed to be nothing more than an abstract mathematical formula by the Supreme Court. It was decided that a mathematical algorithm alone is not patentable, but it was also stated that it would be appropriate to expand the scope of the patent system to include computer programmes. The definition of "process" in Section 100(b) states that it "includes a new application of a known process, machine, manufacture, composition of matter, or substance." Was the innovation being claimed a "process" as defined by the law? As in previous cases upholding the patentability of processes, the Court determined that the claim was not restricted to any certain type of programmable digital computer and did not entail apparatus used for a specific purpose or a transformation of substances. Because the claim was only focused on an algorithm, it was not patentable. This decision established that software in and of itself is not directly patentable, making it a key case in the history of software.

CONCLUSION

After considering the above three jurisdictions regarding the software patents, there are still some doubts relating to the patentability of the software. With the nature of software, it is not fair to try to define the product as a traditional tangible product or just as a writing of codes. In this era of technology, the world should come together to codify a new set of interpretations, regulations and laws related to software patenting and copyright issues.