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