As the software Industry channels its way to a promising India 2020, little is clear on the scope, scale and impact that patents will have in the upcoming landscape. With the release of the third Examination Guidelines for patents on Computer related Inventions by the Indian Patent Office (IPO), software enterprises across the spectrum are trying to make sense of the direction it provides, and whether it'll take them ashore. This article shall try to provide a background, significance and impact of the CRI guidelines. A software patent is a techno-legal claiming monopoly over the components or mechanism of software which it disclosed and explains. Exclusivity provided by patents have contributing in catapulting ventures like Google, Facebook, Whatsapp, Skype, Apple, to mention a few, the success stories of which are often quoted by proponents of software patents. To exemplify, Google applied for a patent (US6285999) for its search mechanism, on 10/01/1997, months before launching google.com, and the internet changed for good and forever.

However, in many cases much like the Google patent the claims are broad and generic, sometimes going beyond their specific purpose. And this is where the critics of software patents find resonance, asserting that software inventions are to be seen in a different light due to their inherently generic nature, and the patent system must platform a stricter criteria of patentability or doing away with it all together. Here surfaces India's Section 3(k) of the Patents Act which renders'a mathematical or business method or a computer program per se or algorithms'non patentable. On plain reading it appears to be against software claims of any sort, but words trigger chaos, especially in law, in this case raising the contention that certainly the legislative intent was to allow certain software patents else why anchor computer programs with per se.

The ambiguity in 3(k) led to many inconsistent grants and refusal of software patents over the years and called for clear guidelines for the stakeholders to understand what, and rather what not can be granted. Before the first examination guidelines were

released by the IPO (Indian Patent Office) in August 2015, patents were granted to software companies, although stringently but on a regular basis, giving an impression that if claimed with proper structure to showcase a strong technical effect falling outside the 3(k) exclusions, the software patent would be issued. Examples range across patents issued to foreign companies like Microsoft on text editing (IN262555) to Indian companies like TCS on Raw data file management (IN203452). When the first CRI guidelines were published it inked in black and white that software claims providing a further technical effect would be allowed, partly consistent with what was happening for years. The guidelines however opened a Pandora's box by illustrating certain unassumingly liberal examples supporting its pro-software patents stance, the kind which would not have got granted earlier, and almost immediately attracted the wrath of many, not just the critics of software patents. A series of representations were submitted by different entities at the IPO widely criticizing the guidelines and seeking suitable revisions.

A software patent is a techno-legal claiming monopoly over the components or mechanism of software which it disclosed and explains

Seemingly pressurized by the representations and the media reports circulating the same, the IPO decided to take a U-turn and issued the second CRI Guidelines in February 2016, which was stunningly anti-software patents, with no examples of grantable patents being listed. The text almost implied that no software patent would be granted except those with a new hardware, a bizarre proposition since the new hardware would merit its own patent claims and would not be claimed as software. Immediately there after the approach to software patents changed, and though software patents were still being granted in certain few cases, there was confusion, inconsistency and disturbance quite like never before. As equilibrium ought to have it, there was now dissatisfaction among those who were the seekers of software patents and voices were raised from the other direction.

Just about a year having passed by, the third CRI guidelines were released in June 2017 making another reversal in position. With the first set of guidelines being overtly pro software patents and the second falling on other extreme, the third guidelines professed the diplomacy of the IPO by projecting a neutral stand on software patents gripping the imagination of the stakeholders. While on one hand the guidelines have removed the novel hardware requirement, it has not given any examples showing grantable claims and has used general expressions to enable the possibility of grants, leaving the reader dry on the clarity sought from the guidelines to begin with. The reversal from anti software patent dictum, however, is notably an important message, even if symbolic, which would provide enough anchoring for those lawyers who would hereinafter argue for software patents' grant at the IPO.

With the fresh guidelines, it appears that software patents in India are here to stay, but not without a high threshold of patentability. Now whether or not this benefits the software ecosystem in India quite depends on the economic ideology one has w.r.t patents, but in times when many Indian startups are coming up with interesting software products and Make-in-India is talk of the town,I personally tilt towards a feeling that a strict pro-software patent regime would pave the way for home grown startups much the same way it did for Silicon Valley startups in the past couple decades.