As the revised guidelines for examination of Computer related inventions (CRIs) has been published by the Indian Patent Office this Friday, I am sure none of us must be waiting up till Monday to unravel the mystery. Yes, there is something scripted out there, which has the potential to either question our previous understanding of CRIs or compel the drafting attorneys to re-visit the claim style that they have so confidently adopted so far.
Specifically, my reference is to Section 4.4.5 of the released guidelines that has presented some confounding expression to the commonly practiced Means plus Function claiming style. Very forthrightly, the Patent Office has laid it on the line that “the “means” in the claims shall clearly be defined with the help of physical constructional features and their reference numerals to enhance the intelligibility of the claims … Further if the specification supports performing the invention solely by the computer program then in that case means plus function claims shall be rejected as the means are nothing by computer programme per se”.
Can this be presumably construed as one of the eligibility tests for Means claims to pass the 3(k) muster? Oddly intriguing! The question then arises does section 3(k) of the Indian Patent Act, actually intends to reject the computer programs claimed in Means plus Function format having stylistic variation from type mandated under the lately released guidelines.
Perhaps, we need to ponder over the apparatus/system claims presented in the Means plus Function language which comprises a processor programmed with a set of instructions as the only ostensible hardware, whereby the processor further comprises a plurality of independently functioning modules collaborating in a defined way to render the apparatus/system specific in its performance.
As an illustrative example, let’s consider an independent Means claim directed to a noise suppression system that has assumed the following expression:
A communication system, comprising:
a means (10) to receive a first signal from a first device and a second signal from a second device;
a means (20) to process the first signal in a filter to provide a first predicted signal and process the second signal in the filter to provide a second predicted signal;
a means (30) subtract the first predicted signal from the second signal to provide a first reverberating signal and the second predicted signal from the first signal to provide a second reverberating signal; and
a means (40) to process the first reverberating signal and the second reverberating signal to produce suppressed noise between the first device and the second device.
In the above Means plus Function scheme of claim representation, the different modules of a computer programme are presented as various self-contained means (10, 20, 30, 40) that perform the functionality of computer program running on the communication system to achieve a concrete benefit of noise suppression in an inventive way.
Thus, although the computer programme achieves the technical effect of noise suppression causing the processor of the communication system to function in a specific way, yet such a claim type shall be held accountable by the Patent Office according to newly introduced CRI guidelines (See II. 30-33 on page 14) as these means are supported in the specification solely by the computer programme.
But, shouldn’t we categorically agree that the above presented case does not fall within the ambit of “computer programme per se”, for the reason that here the computer programme causes the processor to perform a particular task and achieve a particular practical result. This implies that it is not the underlying substance in the claim but claiming strategy, precisely the form and type of claim writing that shall validate the credentials of such an inventive concept.
This, in principle, is contrary to what has been stipulated in Section 4.4.4 of the guidelines that overtly particularize that “the focus should be on the underlying substance of the invention, not the particular form in which it is claimed”. So, will it be prudent on our part to accept outrightly the conditions pledged under Section 4.4.5 of the guidelines? Paradoxical isn’t it!.
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