Patent Protection To AI Requires A Clear CRI Guideline

The Computer Related Inventions (CRI) issues are expanding their dimensions and it is evident in a case being heard by the Delhi High Court concerning one of the most contentious issues in patent law, software patenting.

An appeal has been filed before the Delhi High Court against the 2019 decision by the Bombay Patent office in the matter of Microsoft Technologies Licensing ("Microsoft Technologies").

Brief about the matter, Bombay Patent Office rejected a patent request for software by Microsoft, on the grounds of Sec. 3(k) of The Patents Act, 1970.?

The Patent Office while deciding on the eligibility for a patent for the software, relied on the CRI's guideline 2016, instead of the CRI's guideline 2017. Relying on the guideline of 2017 seems more logical because the guidelines of 2016 are more restrictive in granting patents to the software.?

In 2016, the Indian Patent Office significantly drafted CRI guidelines that introduced a 3-step procedure that precluded the patentability of software inventions. This guideline was not a right fit for most large players in the software industry, moreover, it created an extra hurdle to cross to get patent rights over inventive software programs. Revised ex-animation guidelines were published on 30th June 2017, by Controller General passed Office Order No, 36 of 2017. The most notable amendment involved the elimination of the requirement that patents for software could only be claimed in conjunction with novel hardware.

Referring to the 161st report on the Review of the Intellectual Property Rights Regime in India by the Parliament, it was noted that the patent regime under Sec. 3(k) does not adequately protect AI since software patents are not protected, therefore, it may seem ambiguous to the Court while interpreting.?

Simple patentability does not necessarily promote innovation, which necessitates a careful balance of incentivizing innovation while avoiding monopolisation. This obviously necessitates careful economic and empirical research, which gets lost in the debate over whether more patents imply more innovation.

The Delhi High Court heard the respondent on 06th March 2023 and the matter is further listed on 16th March 2023.

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