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INDIAN METHOD PATENTS


the TRIPS mandate to provide patent protection in all industries. It is also essential to note that financial patents have been granted and recognised in various jurisdictions for several years. One of the first financial patents, granted in 1815, pertained to methods for preventing the counterfeiting of notes. However, almost all such financial inventions were tied to some tangible article and this became the determining test. If a process, not merely an idea, can be tied to an article or machine, it may be patented. Tis implied that accounting methods and similar business ideas were not patent-protected.


With the advancement of technology, and the development of e-commerce, the connection of such a business idea or manner of conducting an economic activity with a tangible article has become more and more difficult. Tus came the era of business method patents, where a manner of conducting business was deemed to be patentable even if it could not be tied to a tangible article and could only be rendered on a computer.


Te 1998 US case of State Street Bank v. Signature Financial Group was a landmark, finding that a method of doing business could not be excluded from patentable subject matter. However, the


requirement that such business methods lead to an advancement of “technological arts” was maintained until the court rejected it on the grounds that it was a non-statutory requirement.


Te position in the US aſter State Street was that business methods were considered patentable subject matter and were only required to show novelty, usefulness and non-obviousness.


In India, Section 2(j) of the Patent Law describes an invention as a new product or process that involves an inventive step and is capable of industrial application. Inventive step refers to a feature of an invention that involves a technical advancement or has economic significance, or both, and that is not obvious to a skilled person. It would appear that business methods may also be included in the definition of an invention.


However, Section 3(k) states that no patent can be granted to an application that claims a mathematical or business method, a computer program per se or algorithms. Tis excludes business methods from the patentability criteria. However, business method patents have been granted by the Indian Patent Office, albeit clothed in terms of being “technological advancements”.


Most of these inventions, like those in the US prior to State Street, are tied to tangible articles or are computer-enabled business processes.


In India, the patent office has granted patents to business models, but only those that could be tied to an apparatus to one degree or another. For example, in application number IN/PCT/2002/01358 (now granted Patent No. 201372), a patent was granted to McKinsey & Co. for a method of conducting online bidding transactions. However, this business method was tied to an apparatus, in this case a computer.


Te invention dealt with a method of conducting a bidding session through certain hardware, such as a main server and remote terminals of the bidders. Te server would accept bids from the terminals and conduct the bidding by analysing the bids. It would relay information back and forth, and conduct transactions according to recognised parameters. Tis case demonstrates that a simple method of conducting business would not be sufficient to receive patent protection and must comply with the ‘machine or apparatus test’.


Te US Supreme Court, in its recent judgment in Bilski v. Kappos, also referred to business


58 World Intellectual Property Review September/October 2010


www.worldipreview.com


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