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Patenting of Software- an Insight

An Overview Of Software Patentingis filed.d) Duration of protection
The concept of "intellectual property"The TRIPS agreement mandates a period of
in India over the last few years hasat least 20 years for a product patent
taken on some epic proportions for aand 15 years in the case of a process
number of reasons. One of the primarypatent. For Copyright, the agreement
reasons, attributable to the growingprescribes a minimum period of the
awareness among the urban Indianlifetime of the author plus seventy
population, is of the significance and,years.
more importantly, the commercialJurisdictions Of Software Patenting
benefits in protecting its intellectualSubstantive law regarding the
property rights both within and outsidepatentability of software and
India. And under traditional principlescomputer-implemented inventions, and
of intellectual property protection,case law interpreting the legal
patent law is to encourage scientificprovisions, are different under
research, new technology and industrialdifferent jurisdictions.
progress. The fundamental principle ofSoftware patents under multilateral
patent law is that the patent is grantedtreaties:
only for an invention i.e. new and• Software patents under TRIPs
useful the said invention must haveAgreement
novelty and utility. The grant of patent• Software patents under the European
thus becomes of industrial property andPatent Convention
also called an intellectual property.• Computer programs and the Patent
And the computer software is aCooperation Treaty
relatively new recipient of patentSoftware patenting under TRIPs Agreement
protection.The WTO's Agreement on Trade-Related
The term "Patent'' has its origin fromAspects of Intellectual Property Rights
the term "Letter Patent''. This(TRIPs), particularly Article 27, are
expression 'Letter Patent' meant opensubject to debate on the international
letter and were instruments under thelegal framework for the patentability of
Great Seal of King of England addressedsoftware, and on whether software and
by the Crown to all the subjects atcomputer-implemented inventions should
large in which the Crown conferredbe considered as a field of technology.
certain rights and privileges on one orAccording to Art. 27 of TRIPS Agreement,
more individuals in the kingdom. It waspatents shall be available for any
in the later part of the 19th centuryinventions, whether products or
new inventions in the field of art,processes, in all fields of technology,
process, method or manner ofprovided that they are new, involve an
manufacture, machinery and otherinventive step and are capable of
substances produced by manufacturersindustrial application. (...) patents
were on increased and the inventorsshall be available and patent rights
became very much interested that theenjoyable without discrimination as to
inventions done by them should not bethe place of invention, the field of
infringed by any one else by copyingtechnology and whether products are
them or by adopting the methods used byimported or locally produced."
them. To save the interests ofHowever, there have been no dispute
inventors, the then British rulerssettlement procedures regarding software
enacted the Indian Patents and Designpatents. Its relevance for patentability
Act, 1911.in the computer-implemented business
With respect to patentability ofmethods, and software information
software -related inventions, it istechnology remains uncertain, since the
currently one of the most heated areasTRIPs agreement is subject to
of debate. Software has becomeinterpretation.
patentable in recent years in mostSoftware patents under the European
jurisdictions (although withPatent Convention
restrictions in certain countries,Within European Union member states, the
notably those signatories of theEPO and other national patent offices
European Patent Convention or EPC) andhave issued many patents for inventions
the number of software patents has riseninvolving software since the European
rapidly.Patent Convention (EPC) came into force
Meaning Of Software Patentingin the late 1970s. Article 52 EPC
The term "software" does not have aexcludes "programs for computers" from
precise definition and even the softwarepatentability (Art. 52(2)) to the extent
industries fails to give an specificthat a patent application relates to a
definition. But it is basically used tocomputer program "as such" (Art. 52(3)).
describe all of the different types ofThis has been interpreted to mean that
computer programs. Computer programs areany invention which makes a non-obvious
basically divided into "application"technical contribution" or solves a
programs" and "operating system"technical problem" in a non-obvious way
programs". Application programs areis patentable even if a computer program
designed to do specific tasks to beis used in the invention.
executed through the computer and theComputer-implemented inventions which
operating system programs are used toonly solve a business problem using a
manage the internal functions of thecomputer, rather than a technical
computer to facilitate use ofproblem, are considered unpatentable as
application program.lacking an inventive step. Nevertheless,
Though the term 'Software patent' doesthe fact that an invention is useful in
not have a universally acceptedbusiness does not mean it is not
definition. One definition suggested bypatentable if it also solves a technical
the Foundation for a Free Informationproblem.
Infrastructure is that a software patentComputer programs and the Patent
is a "patent on any performance of aCooperation Treaty
computer realized by means of a computerThe Patent Cooperation Treaty (PCT) is
program".an international patent law treaty,
According to Richard Stallman, thewhich provides a unified procedure for
co-developer of the GNU-Linux operatingfiling patent applications to protect
system and proponent of Free Softwareinventions. A patent application filed
says, "Software patents are patentsunder the PCT is called an international
which cover software ideas, ideas whichapplication or PCT application. Under
you would use in developing software.the PCT, the international search and
That is Software patents refer tothe preliminary examination are
patents that could be granted onconducted by International Searching
products or processes (includingAuthorities (ISA) and International
methods) which include or may includePreliminary Examining Authority (IPEA).
software as a significant or at leastCurrent Trend
necessary part of their implementation,However, before we start hailing the
i.e. the form in which they are put inadvent of a new era and equating the
practice (or used) to produce the effectpatenting of software in India it would
they intend to provide.be well worth our while to take a pause
Early example of a software patentand examine the realities of software
On 21st Sep 1962, a British patentpatenting. We could do this by looking
application entitled "A Computerat examples of countries in which
Arranged for the Automatic Solution ofsoftware patenting has already become
Linear Programming Problems" was filed.the order of the day, such as in the US
The invention was concerned withand Japan
efficient memory management for theUnited States
simplex algorithm, and may beThe United States Patent and Trademark
implemented by purely software means.Office (USPTO) has traditionally not
The patent was granted on August 17,considered software to be patentable
1966 and seems to be one of the firstbecause by statute patents can only be
software patents.granted to "processes, machines,
Conceptual Difference Between Copyrightarticles of manufacture, and
And Patentcompositions of matter". i.e. In
Software has traditionally beenparticular, patents cannot be granted to
protected under copyright law since code"scientific truths" or "mathematical
fits quite easily into the descriptionexpressions" of them. The USPTO
of a literary work. Thus, Software ismaintained the position that software
protected as works of literature underwas in effect a mathematical algorithm,
the Berne Convention, and any softwareand therefore not patentable, into the
written is automatically covered by1980s. This position of the USPTO was
copyright. This allows the creator tochallenged with a landmark 1981 Supreme
prevent another entity from copying theCourt case, Diamond v. Diehr. The case
program and there is generally no needinvolved a device that used computer
to register code in order for it to besoftware to ensure the correct timing
copyrighted. While Software Patentingwhen heating, or curing, rubber.
has recently emerged (if only in the US,Although the software was the integral
Japan and Europe) where, Patents givepart of the device, it also had other
their owners the right to prevent othersfunctions that related to real world
from using a claimed invention, even ifmanipulation. The court then ruled that
it was independently developed and thereas a device to mold rubber, it was a
was no copying involved.patentable object. The court essentially
Further, it should be noted that patentsruled that while algorithms themselves
cover the underlying methodologiescould not be patented, devices that
embodied in a given piece of software.utilized them could.
On the other copyright prevents theBut in 1982 the U.S. Congress created a
direct copying of software, but do notnew court i.e the Federal Circuit to
prevent other authors from writing theirhear patent cases. This court allowed
own embodiments of the underlyingpatentability of software, to be treated
methodologies.uniformly throughout the US. Due to a
The issues involved in conferring patentfew landmark cases in this court, by the
rights to software are, however, a lotearly 1990s the patentability of
more complex than taking out copyrightssoftware was well established. Moreover,
on them. Specifically, there are twoSeveral successful litigations show that
challenges that one encounters whensoftware patents are now enforceable in
dealing with software patents. The firstthe US. That is the reason, Patenting
is about the instrument of patent itselfsoftware has become widespread in the
and whether the manner of protection itUS. As of 2004, approximately 145,000
confers is suited to the softwarepatents had issued in the 22 classes of
industry. The second is the nature ofpatents covering computer implemented
software, and whether it should beinventions.
subject to patenting.Japan
However, issues involved in conferringSoftware is directly patentable in
patent rights to software are a lot moreJapan. In various litigations in Japan,
complex than taking out copyrights onsoftware patents have been successfully
them. Specifically, there are twoenforced. In 2005, for example,
challenges that one encounters whenMatsushita won a court order barring
dealing with software patents. The firstJustsystem from infringing Matsuhita's
is about the instrument of patent itselfJapanese patent 2,803,236 covering word
and whether the manner of protection itprocessing software.
confers is suited to the softwareIndian Position
industry. The second is the nature ofWith respect to computer software, in
software and whether it should bePatents (Amendment) Act, 2002, the scope
subject to patenting.a) Differentof non-patentable subject matter in the
Subject MattersAct was amended to include the
Copyright protection extends to allfollowing: "a mathematical method or a
original literary works (among them,business method or a computer programme
computer programs), dramatic, musicalper se or algorithms".
and artistic works, including films.However, the recent amendment changes
Under copyright, protection is given(Ordinance, 2004), which amends the
only to the particular expression of anPatents Act, 1970, has been promulgated
idea that was adopted and not the ideaafter receiving assent from the
itself. (For instance, a program to addPresident of India and has came into
numbers written in two differenteffect from 1st Jan., 2005. Apart from
computer languages would count as twochange in pharmaceuticals and agro
different expressions of one idea)chemicals, one of the seminal amendments
Effectively, independent rendering of athis Ordinance seeks to bring is to
copyrighted work by a third party wouldpermit the patenting of embedded
not infringe the copyright.software.
Generally patents are conferred on anyHence, the amendment means that while a
'new' and 'useful' art, process, methodmathematical or a business method or an
or manner of manufacture, machines,algorithm cannot be patented, a computer
appliances or other articles orprogramme which has a technical
substances produced by manufacture.application in any industry or which can
Worldwide, the attitude towardsbe incorporated in hardware can be
patentability of software has beenpatented. Since any commercial software
skepticalb) Who may claim the right to ahas some industry application and all
patent /copyright?applications can be construed as
Generally, the author of a literary,technical applications, obviously it
artistic, musical or dramatic workopens all software patenting.
automatically becomes the owner of itsIn any case, any company seeking to file
copyright. The patent, on the other handa patent application for software under
is granted to the first to apply for it,the Ordinance should ensure that its
regardless of who the first to invent itinvention firstly, follows the three
was. Patents cost a lot of money. Theybasic tests:
cost even more paying the lawyers to• Inventive Steps
write the application than they cost to• Novelty
actually apply. It takes typically some• Usefulness
years for the application to getTherefore, it is important that the
considered, even though patent officessoftware sought to be protected is not
do an extremely sloppy job ofmerely a new version or an improvement
considering.c) Rights conferredover an existing code.
Copyright law gives the owner theFurther, in accordance with the specific
exclusive right to reproduce therequirements of the Ordinance with
material, issue copies, perform, adaptregard to patentability of software, the
and translate the work. However, thesesoftware should necessarily have a
rights are tempered by the rights oftechnical application to the industry or
fair use which are available to thebe intrinsic to or "embedded" in
public. Under "fair use", certain useshardware. This is to prevent against any
of copyright material would not befuture litigation or claims of
infringing, such as use for academicinfringements being raised, which is a
purposes, news reporting etc. Further,distinct probability even after a patent
independent recreation of a copyrightedhas been granted.
work would not constitute infringement.Conclusion
Thus if the same piece of code wereIndia for its part seems to have adopted
independently developed by two differentthe more conservative approach of the
companies, neither would have a claimEuropean patenting norms for software.
against the other.But the Ordinance definitely has its use
A patent confers on the owner anand relevance in today's India,
absolute monopoly which is the right toparticularly for our growing domestic
prevent others from making, using,semi- conductor industry. This, along
offering for sale without his/herwith judicial tempering might definitely
consent. In general, patent protectionensure a judicious use of patent
is a far stronger method of protectionprotection while allowing the industry
than copyright because the protectionto grow through innovations and
extends to the level of the ideainventions, thereby, mitigating the
embodied by a software and injunctsrisks of trivial patents chocking the
ancillary uses of an invention as well.life out of real innovations and
It would weaken copyright in softwareinventions. This is the reason a patent
that is the base of all Europeanshould always be treated as a "double
software development, becauseedged sword", to be wielded with caution
independent creations protected byand sensitivity. Now whether, in reality
copyright would be attackable bythis will be implemented on a rigid
patents. Many patent applications coverbasis or will become broad in scope
very small and specific algorithms orthrough application (as in the U.S.),
techniques that are used in a wideand, more importantly, whether the
variety of programs. Frequently theOrdinance would, in fact, result in
"inventions" mentioned in a patentincreased innovation and inventions in
application have been independentlythe software industry, remains to be
formulated and are already in use byseen.
other programmers when the application



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