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