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Title: Testing Parameters for Software Patentability
Authors: Narasani, Arun Kishore
Kankanala, Kalyan Chakravarthy
Keywords: Software;computer programs;patentability;form - function - test
Issue Date: Jul-2005
Publisher: CSIR
Abstract: Patentability of computer programs is fraught with ambiguity because of multiple reasons. One such reason is the uncertainty and inadequacy of tests to determine patentability. Courts in the US have been struggling to evolve a test that would cover the complete continuum of innovation in computer programs, which manifests in terms of form or function or both. All tests adopted by the court either focus on only form or function, thus missing out the other. It is important for the legislatures and courts to understand the existing lacuna and adopt a test that would lay emphasis on form and function. The test should be modeled to allow inventions having high function or high form or both form and function in high proportion. It should keep inventions having low form and function outside the scope of patent protection. Such a model would promote progress in the entire continuum of the invention in the software field by granting patents to worthy inventions. This paper proposes parameters for coining a reliable test for determining patentability. A test based on parameters such as form and function would encourage innovation in the software industry without stifling progress through grant of frivolous patents. The first part of the paper expounds the law relating to software in USA and India. The second part analyses the existing patentability tests in terms of importance given to form and function of computer programs and third part discusses the usage of form and function as parameters for coining a good patentability test.
Page(s): 300-307
ISSN: 0971-7544
Appears in Collections:JIPR Vol.10(4) [July 2005]

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