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Patenting of Software- an Insight

An  Overview  Of  Software  Patentingseventy  years.
The concept of "intellectual property" inJurisdictions  Of  Software  Patenting
India over the last few years has taken on
some epic proportions for a number ofSubstantive law regarding the patentability
reasons. One of the primary reasons,of software and computer-implemented
attributable to the growing awareness amonginventions, and case law interpreting the
the urban Indian population, is of thelegal provisions, are different under
significance and, more importantly, thedifferent  jurisdictions.
commercial benefits in protecting its
intellectual property rights both within andSoftware patents under multilateral treaties:
outside India. And under traditional
principles of intellectual property• Software patents under TRIPs
protection, patent law is to encourageAgreement
scientific research, new technology and
industrial progress. The fundamental• Software patents under the European
principle of patent law is that the patent isPatent  Convention
granted only for an invention i.e. new and
useful the said invention must have novelty• Computer programs and the Patent
and utility. The grant of patent thus becomesCooperation  Treaty
of industrial property and also called an
intellectual property. And the computerSoftware  patenting  under  TRIPs  Agreement
software is a relatively new recipient of
patent  protection.The WTO's Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPs),
The term "Patent'' has its origin from theparticularly Article 27, are subject to
term "Letter Patent''. This expressiondebate on the international legal framework
'Letter Patent' meant open letter and werefor the patentability of software, and on
instruments under the Great Seal of King ofwhether software and computer-implemented
England addressed by the Crown to all theinventions should be considered as a field of
subjects at large in which the Crowntechnology.
conferred certain rights and privileges on
one or more individuals in the kingdom. ItAccording to Art. 27 of TRIPS Agreement,
was in the later part of the 19th century newpatents shall be available for any
inventions in the field of art, process,inventions, whether products or processes, in
method or manner of manufacture, machineryall fields of technology, provided that they
and other substances produced byare new, involve an inventive step and are
manufacturers were on increased and thecapable of industrial application. (...)
inventors became very much interested thatpatents shall be available and patent rights
the inventions done by them should not beenjoyable without discrimination as to the
infringed by any one else by copying them orplace of invention, the field of technology
by adopting the methods used by them. To saveand whether products are imported or locally
the interests of inventors, the then Britishproduced."
rulers enacted the Indian Patents and Design
Act,  1911.However, there have been no dispute
settlement procedures regarding software
With respect to patentability of softwarepatents. Its relevance for patentability in
-related inventions, it is currently one ofthe computer-implemented business methods,
the most heated areas of debate. Software hasand software information technology remains
become patentable in recent years in mostuncertain, since the TRIPs agreement is
jurisdictions (although with restrictions insubject  to  interpretation.
certain countries, notably those signatories
of the European Patent Convention or EPC) andSoftware patents under the European Patent
the number of software patents has risenConvention
rapidly.
Within European Union member states, the EPO
Meaning  Of  Software  Patentingand other national patent offices have issued
many patents for inventions involving
The term "software" does not have a precisesoftware since the European Patent Convention
definition and even the software industries(EPC) came into force in the late 1970s.
fails to give an specific definition. But itArticle 52 EPC excludes "programs for
is basically used to describe all of thecomputers" from patentability (Art. 52(2)) to
different types of computer programs.the extent that a patent application relates
Computer programs are basically divided intoto a computer program "as such" (Art. 52(3)).
"application programs" and "operating systemThis has been interpreted to mean that any
programs". Application programs are designedinvention which makes a non-obvious
to do specific tasks to be executed through"technical contribution" or solves a
the computer and the operating system"technical problem" in a non-obvious way is
programs are used to manage the internalpatentable even if a computer program is used
functions of the computer to facilitate usein the invention. Computer-implemented
of  application  program.inventions which only solve a business
problem using a computer, rather than a
Though the term 'Software patent' does nottechnical problem, are considered
have a universally accepted definition. Oneunpatentable as lacking an inventive step.
definition suggested by the Foundation for aNevertheless, the fact that an invention is
Free Information Infrastructure is that auseful in business does not mean it is not
software patent is a "patent on anypatentable if it also solves a technical
performance of a computer realized by meansproblem.
of  a  computer  program".
Computer programs and the Patent Cooperation
According to Richard Stallman, theTreaty
co-developer of the GNU-Linux operating
system and proponent of Free Software says,The Patent Cooperation Treaty (PCT) is an
"Software patents are patents which coverinternational patent law treaty, which
software ideas, ideas which you would use inprovides a unified procedure for filing
developing  software.patent applications to protect inventions. A
patent application filed under the PCT is
That is Software patents refer to patentscalled an international application or PCT
that could be granted on products orapplication. Under the PCT, the international
processes (including methods) which includesearch and the preliminary examination are
or may include software as a significant orconducted by International Searching
at least necessary part of theirAuthorities (ISA) and International
implementation, i.e. the form in which theyPreliminary  Examining  Authority  (IPEA).
are put in practice (or used) to produce the
effect  they  intend  to  provide.Current  Trend
Early  example  of  a  software  patentHowever, before we start hailing the advent
of a new era and equating the patenting of
On 21st Sep 1962, a British patentsoftware in India it would be well worth our
application entitled "A Computer Arranged forwhile to take a pause and examine the
the Automatic Solution of Linear Programmingrealities of software patenting. We could do
Problems" was filed. The invention wasthis by looking at examples of countries in
concerned with efficient memory managementwhich software patenting has already become
for the simplex algorithm, and may bethe order of the day, such as in the US and
implemented by purely software means. TheJapan
patent was granted on August 17, 1966 and
seems to be one of the first softwareUnited  States
patents.
The United States Patent and Trademark Office
Conceptual Difference Between Copyright And(USPTO) has traditionally not considered
Patentsoftware to be patentable because by statute
patents can only be granted to "processes,
Software has traditionally been protectedmachines, articles of manufacture, and
under copyright law since code fits quitecompositions of matter". i.e. In particular,
easily into the description of a literarypatents cannot be granted to "scientific
work. Thus, Software is protected as works oftruths" or "mathematical expressions" of
literature under the Berne Convention, andthem. The USPTO maintained the position that
any software written is automatically coveredsoftware was in effect a mathematical
by copyright. This allows the creator toalgorithm, and therefore not patentable, into
prevent another entity from copying thethe 1980s. This position of the USPTO was
program and there is generally no need tochallenged with a landmark 1981 Supreme Court
register code in order for it to becase, Diamond v. Diehr. The case involved a
copyrighted. While Software Patenting hasdevice that used computer software to ensure
recently emerged (if only in the US, Japanthe correct timing when heating, or curing,
and Europe) where, Patents give their ownersrubber. Although the software was the
the right to prevent others from using aintegral part of the device, it also had
claimed invention, even if it wasother functions that related to real world
independently developed and there was nomanipulation. The court then ruled that as a
copying  involved.device to mold rubber, it was a patentable
object. The court essentially ruled that
Further, it should be noted that patentswhile algorithms themselves could not be
cover the underlying methodologies embodiedpatented,  devices  that utilized them could.
in a given piece of software. On the other
copyright prevents the direct copying ofBut in 1982 the U.S. Congress created a new
software, but do not prevent other authorscourt i.e the Federal Circuit to hear patent
from writing their own embodiments of thecases. This court allowed patentability of
underlying  methodologies.software, to be treated uniformly throughout
the US. Due to a few landmark cases in this
The issues involved in conferring patentcourt, by the early 1990s the patentability
rights to software are, however, a lot moreof software was well established. Moreover,
complex than taking out copyrights on them.Several successful litigations show that
Specifically, there are two challenges thatsoftware patents are now enforceable in the
one encounters when dealing with softwareUS. That is the reason, Patenting software
patents. The first is about the instrument ofhas become widespread in the US. As of 2004,
patent itself and whether the manner ofapproximately 145,000 patents had issued in
protection it confers is suited to thethe 22 classes of patents covering computer
software industry. The second is the natureimplemented  inventions.
of software, and whether it should be subject
to  patenting.Japan
However, issues involved in conferring patentSoftware is directly patentable in Japan. In
rights to software are a lot more complexvarious litigations in Japan, software
than taking out copyrights on them.patents have been successfully enforced. In
Specifically, there are two challenges that2005, for example, Matsushita won a court
one encounters when dealing with softwareorder barring Justsystem from infringing
patents. The first is about the instrument ofMatsuhita's Japanese patent 2,803,236
patent itself and whether the manner ofcovering  word  processing  software.
protection it confers is suited to the
software industry. The second is the natureIndian  Position
of software and whether it should be subject
to  patenting.a)  Different  Subject  MattersWith respect to computer software, in Patents
(Amendment) Act, 2002, the scope of
Copyright protection extends to all originalnon-patentable subject matter in the Act was
literary works (among them, computeramended to include the following: "a
programs), dramatic, musical and artisticmathematical method or a business method or a
works, including films. Under copyright,computer  programme  per  se  or algorithms".
protection is given only to the particular
expression of an idea that was adopted andHowever, the recent amendment changes
not the idea itself. (For instance, a program(Ordinance, 2004), which amends the Patents
to add numbers written in two differentAct, 1970, has been promulgated after
computer languages would count as tworeceiving assent from the President of India
different expressions of one idea)and has came into effect from 1st Jan., 2005.
Effectively, independent rendering of aApart from change in pharmaceuticals and agro
copyrighted work by a third party would notchemicals, one of the seminal amendments this
infringe  the  copyright.Ordinance seeks to bring is to permit the
patenting  of  embedded  software.
Generally patents are conferred on any 'new'
and 'useful' art, process, method or mannerHence, the amendment means that while a
of manufacture, machines, appliances or othermathematical or a business method or an
articles or substances produced byalgorithm cannot be patented, a computer
manufacture. Worldwide, the attitude towardsprogramme which has a technical application
patentability of software has beenin any industry or which can be incorporated
skepticalb) Who may claim the right to ain hardware can be patented. Since any
patent  /copyright?commercial software has some industry
application and all applications can be
Generally, the author of a literary,construed as technical applications,
artistic, musical or dramatic workobviously  it  opens  all software patenting.
automatically becomes the owner of its
copyright. The patent, on the other hand isIn any case, any company seeking to file a
granted to the first to apply for it,patent application for software under the
regardless of who the first to invent it was.Ordinance should ensure that its invention
Patents cost a lot of money. They cost evenfirstly,  follows  the  three  basic  tests:
more paying the lawyers to write the
application than they cost to actually apply.•  Inventive  Steps
It takes typically some years for the
application to get considered, even though•  Novelty
patent offices do an extremely sloppy job of
considering.c)  Rights  conferred•  Usefulness
Copyright law gives the owner the exclusiveTherefore, it is important that the software
right to reproduce the material, issuesought to be protected is not merely a new
copies, perform, adapt and translate theversion or an improvement over an existing
work. However, these rights are tempered bycode.
the rights of fair use which are available to
the public. Under "fair use", certain uses ofFurther, in accordance with the specific
copyright material would not be infringing,requirements of the Ordinance with regard to
such as use for academic purposes, newspatentability of software, the software
reporting etc. Further, independentshould necessarily have a technical
recreation of a copyrighted work would notapplication to the industry or be intrinsic
constitute infringement. Thus if the sameto or "embedded" in hardware. This is to
piece of code were independently developed byprevent against any future litigation or
two different companies, neither would have aclaims of infringements being raised, which
claim  against  the  other.is a distinct probability even after a patent
has  been  granted.
A patent confers on the owner an absolute
monopoly which is the right to prevent othersConclusion
from making, using, offering for sale without
his/her consent. In general, patentIndia for its part seems to have adopted the
protection is a far stronger method ofmore conservative approach of the European
protection than copyright because thepatenting norms for software. But the
protection extends to the level of the ideaOrdinance definitely has its use and
embodied by a software and injuncts ancillaryrelevance in today's India, particularly for
uses of an invention as well. It would weakenour growing domestic semi- conductor
copyright in software that is the base of allindustry. This, along with judicial tempering
European software development, becausemight definitely ensure a judicious use of
independent creations protected by copyrightpatent protection while allowing the industry
would be attackable by patents. Many patentto grow through innovations and inventions,
applications cover very small and specificthereby, mitigating the risks of trivial
algorithms or techniques that are used in apatents chocking the life out of real
wide variety of programs. Frequently theinnovations and inventions. This is the
"inventions" mentioned in a patentreason a patent should always be treated as a
application have been independently"double edged sword", to be wielded with
formulated and are already in use by othercaution and sensitivity. Now whether, in
programmers when the application is filed.d)reality this will be implemented on a rigid
Duration  of  protectionbasis or will become broad in scope through
application (as in the U.S.), and, more
The TRIPS agreement mandates a period of atimportantly, whether the Ordinance would, in
least 20 years for a product patent and 15fact, result in increased innovation and
years in the case of a process patent. Forinventions in the software industry, remains
Copyright, the agreement prescribes a minimumto be seen.
period of the lifetime of the author plus



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