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Patenting of Software- an Insight

An Overview Of Software Patenting The TRIPS agreement mandates a period of
The concept of "intellectual property" in at least 20 years for a product patent
India over the last few years has taken and 15 years in the case of a process
on some epic proportions for a number of patent. For Copyright, the agreement
reasons. One of the primary reasons, prescribes a minimum period of the
attributable to the growing awareness lifetime of the author plus seventy
among the urban Indian population, is of years.
the significance and, more importantly, Jurisdictions Of Software Patenting
the commercial benefits in protecting its Substantive law regarding the
intellectual property rights both within patentability of software and
and outside India. And under traditional computer-implemented inventions, and case
principles of intellectual property law interpreting the legal provisions,
protection, patent law is to encourage are different under different
scientific research, new technology and jurisdictions.
industrial progress. The fundamental Software patents under multilateral
principle of patent law is that the treaties:
patent is granted only for an invention • Software patents under TRIPs
i.e. new and useful the said invention Agreement
must have novelty and utility. The grant • Software patents under the European
of patent thus becomes of industrial Patent Convention
property and also called an intellectual • Computer programs and the Patent
property. And the computer software is a Cooperation Treaty
relatively new recipient of patent Software patenting under TRIPs Agreement
protection. The WTO's Agreement on Trade-Related
The term "Patent'' has its origin from Aspects of Intellectual Property Rights
the term "Letter Patent''. This (TRIPs), particularly Article 27, are
expression 'Letter Patent' meant open subject to debate on the international
letter and were instruments under the legal framework for the patentability of
Great Seal of King of England addressed software, and on whether software and
by the Crown to all the subjects at large computer-implemented inventions should be
in which the Crown conferred certain considered as a field of technology.
rights and privileges on one or more According to Art. 27 of TRIPS Agreement,
individuals in the kingdom. It was in the patents shall be available for any
later part of the 19th century new inventions, whether products or
inventions in the field of art, process, processes, in all fields of technology,
method or manner of manufacture, provided that they are new, involve an
machinery and other substances produced inventive step and are capable of
by manufacturers were on increased and industrial application. (...) patents
the inventors became very much interested shall be available and patent rights
that the inventions done by them should enjoyable without discrimination as to
not be infringed by any one else by the place of invention, the field of
copying them or by adopting the methods technology and whether products are
used by them. To save the interests of imported or locally produced."
inventors, the then British rulers However, there have been no dispute
enacted the Indian Patents and Design settlement procedures regarding software
Act, 1911. patents. Its relevance for patentability
With respect to patentability of software in the computer-implemented business
-related inventions, it is currently one methods, and software information
of the most heated areas of debate. technology remains uncertain, since the
Software has become patentable in recent TRIPs agreement is subject to
years in most jurisdictions (although interpretation.
with restrictions in certain countries, Software patents under the European
notably those signatories of the European Patent Convention
Patent Convention or EPC) and the number Within European Union member states, the
of software patents has risen rapidly. EPO and other national patent offices
Meaning Of Software Patenting have issued many patents for inventions
The term "software" does not have a involving software since the European
precise definition and even the software Patent Convention (EPC) came into force
industries fails to give an specific in the late 1970s. Article 52 EPC
definition. But it is basically used to excludes "programs for computers" from
describe all of the different types of patentability (Art. 52(2)) to the extent
computer programs. Computer programs are that a patent application relates to a
basically divided into "application computer program "as such" (Art. 52(3)).
programs" and "operating system This has been interpreted to mean that
programs". Application programs are any invention which makes a non-obvious
designed to do specific tasks to be "technical contribution" or solves a
executed through the computer and the "technical problem" in a non-obvious way
operating system programs are used to is patentable even if a computer program
manage the internal functions of the is used in the invention.
computer to facilitate use of application Computer-implemented inventions which
program. only solve a business problem using a
Though the term 'Software patent' does computer, rather than a technical
not have a universally accepted problem, are considered unpatentable as
definition. One definition suggested by lacking an inventive step. Nevertheless,
the Foundation for a Free Information the fact that an invention is useful in
Infrastructure is that a software patent business does not mean it is not
is a "patent on any performance of a patentable if it also solves a technical
computer realized by means of a computer problem.
program". Computer programs and the Patent
According to Richard Stallman, the Cooperation Treaty
co-developer of the GNU-Linux operating The Patent Cooperation Treaty (PCT) is an
system and proponent of Free Software international patent law treaty, which
says, "Software patents are patents which provides a unified procedure for filing
cover software ideas, ideas which you patent applications to protect
would use in developing software. inventions. A patent application filed
That is Software patents refer to patents under the PCT is called an international
that could be granted on products or application or PCT application. Under the
processes (including methods) which PCT, the international search and the
include or may include software as a preliminary examination are conducted by
significant or at least necessary part of International Searching Authorities (ISA)
their implementation, i.e. the form in and International Preliminary Examining
which they are put in practice (or used) Authority (IPEA).
to produce the effect they intend to Current Trend
provide. However, before we start hailing the
Early example of a software patent advent of a new era and equating the
On 21st Sep 1962, a British patent patenting of software in India it would
application entitled "A Computer Arranged be well worth our while to take a pause
for the Automatic Solution of Linear and examine the realities of software
Programming Problems" was filed. The patenting. We could do this by looking at
invention was concerned with efficient examples of countries in which software
memory management for the simplex patenting has already become the order of
algorithm, and may be implemented by the day, such as in the US and Japan
purely software means. The patent was United States
granted on August 17, 1966 and seems to The United States Patent and Trademark
be one of the first software patents. Office (USPTO) has traditionally not
Conceptual Difference Between Copyright considered software to be patentable
And Patent because by statute patents can only be
Software has traditionally been protected granted to "processes, machines, articles
under copyright law since code fits quite of manufacture, and compositions of
easily into the description of a literary matter". i.e. In particular, patents
work. Thus, Software is protected as cannot be granted to "scientific truths"
works of literature under the Berne or "mathematical expressions" of them.
Convention, and any software written is The USPTO maintained the position that
automatically covered by copyright. This software was in effect a mathematical
allows the creator to prevent another algorithm, and therefore not patentable,
entity from copying the program and there into the 1980s. This position of the
is generally no need to register code in USPTO was challenged with a landmark 1981
order for it to be copyrighted. While Supreme Court case, Diamond v. Diehr. The
Software Patenting has recently emerged case involved a device that used computer
(if only in the US, Japan and Europe) software to ensure the correct timing
where, Patents give their owners the when heating, or curing, rubber. Although
right to prevent others from using a the software was the integral part of the
claimed invention, even if it was device, it also had other functions that
independently developed and there was no related to real world manipulation. The
copying involved. court then ruled that as a device to mold
Further, it should be noted that patents rubber, it was a patentable object. The
cover the underlying methodologies court essentially ruled that while
embodied in a given piece of software. On algorithms themselves could not be
the other copyright prevents the direct patented, devices that utilized them
copying of software, but do not prevent could.
other authors from writing their own But in 1982 the U.S. Congress created a
embodiments of the underlying new court i.e the Federal Circuit to hear
methodologies. patent cases. This court allowed
The issues involved in conferring patent patentability of software, to be treated
rights to software are, however, a lot uniformly throughout the US. Due to a few
more complex than taking out copyrights landmark cases in this court, by the
on them. Specifically, there are two early 1990s the patentability of software
challenges that one encounters when was well established. Moreover, Several
dealing with software patents. The first successful litigations show that software
is about the instrument of patent itself patents are now enforceable in the US.
and whether the manner of protection it That is the reason, Patenting software
confers is suited to the software has become widespread in the US. As of
industry. The second is the nature of 2004, approximately 145,000 patents had
software, and whether it should be issued in the 22 classes of patents
subject to patenting. covering computer implemented inventions.
However, issues involved in conferring Japan
patent rights to software are a lot more Software is directly patentable in Japan.
complex than taking out copyrights on In various litigations in Japan, software
them. Specifically, there are two patents have been successfully enforced.
challenges that one encounters when In 2005, for example, Matsushita won a
dealing with software patents. The first court order barring Justsystem from
is about the instrument of patent itself infringing Matsuhita's Japanese patent
and whether the manner of protection it 2,803,236 covering word processing
confers is suited to the software software.
industry. The second is the nature of Indian Position
software and whether it should be subject With respect to computer software, in
to patenting.a) Different Subject Matters Patents (Amendment) Act, 2002, the scope
Copyright protection extends to all of non-patentable subject matter in the
original literary works (among them, Act was amended to include the following:
computer programs), dramatic, musical and "a mathematical method or a business
artistic works, including films. Under method or a computer programme per se or
copyright, protection is given only to algorithms".
the particular expression of an idea that However, the recent amendment changes
was adopted and not the idea itself. (For (Ordinance, 2004), which amends the
instance, a program to add numbers Patents Act, 1970, has been promulgated
written in two different computer after receiving assent from the President
languages would count as two different of India and has came into effect from
expressions of one idea) Effectively, 1st Jan., 2005. Apart from change in
independent rendering of a copyrighted pharmaceuticals and agro chemicals, one
work by a third party would not infringe of the seminal amendments this Ordinance
the copyright. seeks to bring is to permit the patenting
Generally patents are conferred on any of embedded software.
'new' and 'useful' art, process, method Hence, the amendment means that while a
or manner of manufacture, machines, mathematical or a business method or an
appliances or other articles or algorithm cannot be patented, a computer
substances produced by manufacture. programme which has a technical
Worldwide, the attitude towards application in any industry or which can
patentability of software has been be incorporated in hardware can be
skepticalb) Who may claim the right to a patented. Since any commercial software
patent /copyright? has some industry application and all
Generally, the author of a literary, applications can be construed as
artistic, musical or dramatic work technical applications, obviously it
automatically becomes the owner of its opens all software patenting.
copyright. The patent, on the other hand In any case, any company seeking to file
is granted to the first to apply for it, a patent application for software under
regardless of who the first to invent it the Ordinance should ensure that its
was. Patents cost a lot of money. They invention firstly, follows the three
cost even more paying the lawyers to basic tests:
write the application than they cost to • Inventive Steps
actually apply. It takes typically some • Novelty
years for the application to get • Usefulness
considered, even though patent offices do Therefore, it is important that the
an extremely sloppy job of considering.c) software sought to be protected is not
Rights conferred merely a new version or an improvement
Copyright law gives the owner the over an existing code.
exclusive right to reproduce the Further, in accordance with the specific
material, issue copies, perform, adapt requirements of the Ordinance with regard
and translate the work. However, these to patentability of software, the
rights are tempered by the rights of fair software should necessarily have a
use which are available to the public. technical application to the industry or
Under "fair use", certain uses of be intrinsic to or "embedded" in
copyright material would not be hardware. This is to prevent against any
infringing, such as use for academic future litigation or claims of
purposes, news reporting etc. Further, infringements being raised, which is a
independent recreation of a copyrighted distinct probability even after a patent
work would not constitute infringement. has been granted.
Thus if the same piece of code were Conclusion
independently developed by two different India for its part seems to have adopted
companies, neither would have a claim the more conservative approach of the
against the other. European patenting norms for software.
A patent confers on the owner an absolute But the Ordinance definitely has its use
monopoly which is the right to prevent and relevance in today's India,
others from making, using, offering for particularly for our growing domestic
sale without his/her consent. In general, semi- conductor industry. This, along
patent protection is a far stronger with judicial tempering might definitely
method of protection than copyright ensure a judicious use of patent
because the protection extends to the protection while allowing the industry to
level of the idea embodied by a software grow through innovations and inventions,
and injuncts ancillary uses of an thereby, mitigating the risks of trivial
invention as well. It would weaken patents chocking the life out of real
copyright in software that is the base of innovations and inventions. This is the
all European software development, reason a patent should always be treated
because independent creations protected as a "double edged sword", to be wielded
by copyright would be attackable by with caution and sensitivity. Now
patents. Many patent applications cover whether, in reality this will be
very small and specific algorithms or implemented on a rigid basis or will
techniques that are used in a wide become broad in scope through application
variety of programs. Frequently the (as in the U.S.), and, more importantly,
"inventions" mentioned in a patent whether the Ordinance would, in fact,
application have been independently result in increased innovation and
formulated and are already in use by inventions in the software industry,
other programmers when the application is remains to be seen.
filed.d) Duration of protection




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