Most concerns pivot on and follow from the interpretation of Section 3(k) of the Patents Act, 1970, which excludes the patentability of computer programmes per se.
The Delhi High Court, in its 2019 decision in Ferid Allani v. Union of India and Ors, acknowledged that the future of innovation lay in AI, blockchain and related technologies, all of which are based on computer programmes, but they “would not become non-patentable inventions – simply for that reason.” It held that “technical effect” or “technical contribution” must be determined to decide patentability of CRIs, and that an invention merely being implemented using a computer program is no bar to its patentability. While the Guidelines do not mention the term, the decision states “the meaning of ‘technical effect’ is no longer in dispute owing to the development of judicial precedents and patent office practices internationally and in India”. The fact that AI inventions are not excluded from patentability if they have a technical effect or a technical contribution is in line with the position in the United Kingdom and the European Union.
A review of recent decisions shows that Controllers are now examining CRI applications for technical effect or contribution. In most cases, this can be demonstrated if the invention solves a technical problem in a field of technology and provides a technical solution to a technical problem (when the invention is directed to a specific technical implementation of AI).
For example, Indian Patent Application (IPA) 3323/CHENP/2012, for a system and method to model and monitor an energy load, was granted upon a demonstration of the technical effect of reducing the energy consumption of an air conditioning system. Similarly, an AI system for targeted content on display devices in real time, in IPA 202041003260, was granted because it was shown to be a technological advancement solving conventional technical problems. An AI-based assessment and tutoring method in 60/CHE/2010 providing contextual audio and video assistance to help users solve problems was granted because it used emotional elements, such as encouraging tones, to enforce learning.
In contrast, a CRI in IPA 8383/DELNP/2009 for a machine-to-machine communication platform that transfers medical data, was rejected. The IPO was not convinced by the technical effect provided by applicant, who claimed that it was an efficient and secure method of aggregating electronic patient records.
Source: Barandbench
