‘Patent’ refers to a grant of privilege, property or authority made by the Government or the sovereign of the country to one or more individuals, such grants are made by the instrument ‘Patent’.
It is recognized as a form of industrial or intellectual property. It is a right granted to a person who has contributed a new and useful article or an improvement of existing article or a new process of making an article. The exclusive right is to manufacture the new article invented process for a limited period. This exclusive right granted to the inventor is called ‘Patent’.
The Patentee (i.e., owner of the patent) is entitled to deal with his “patent” in the same manner of any other movable property. That is saying, he can sell the whole or part of his property, can grant license to others to use the patented property, can assign it to others etc.,
The objective behind patent law is to recognize the exclusive right of a patentee to gain commercial advantage out of his invention. Further to encourage the inventors to invest their creative faculties, knowing that their inventions would be protected by law and no one else would be protected by law and no one else would be able to copy their invention for a certain period. And to develop scientific research, new technology and industrial progress. Grant of exclusive privilege on the patented product for particular period, stimulates new invention of commercial utility. 1
If such monopoly is not granted the inventors may keep their inventions as secrets. This of no use to any one, only if the inventions are disclosed it will pass on into the public domain. The grant is not only for the protection of the inventor but also for the interest of the general public at large.
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1. Bishwanath Prasad Radhey Shyam Vs Hindusthan Metal Industries (1979) 2scc511.
SOFTWARE PATENTS:
‘Software patents’ do not have any universally accepted definition. One definition suggested by the ‘Foundation for a free information Infrastructure’ is that a software patent is a “patent on any performance of a computer realized by means of a computer program”. Generally Computer Programmes are protected by grant of copyright for such programmes. Now the international trend it tilting towards recognizing more sophisticated computer programmes as inventions entitled to patent protection. The patentability of software related invention is currently one of the most heated areas of debate. Software has become patentable in recent years in most jurisdictions (although with restrictions in certain countries, notably those signatories of the European Patent convention or EPC) and the number of software patents has risen rapidly. The patentablity of ‘business methods’ (often software-based) has further fuelled the debate, especially as concern the possibility that low quality patents may flood the electronic commerce sector and impede its growth.
POSITION WITH RESPECT TO THE U.K.
S.1(2) of the U.K.Patents Act of 1977 provides that computer programme is not a patentable invention. The patent law is interpreted to have the same effect as the European Patent Convention such that “Programs for Computers” are excluded from patentablility to the extent that patent application relates to a computer program “as such”. The current trend in U.K. in the light of decided case laws is that an invention will only be regarded as an invention if it provides a contribution that is not excluded and which is also technical. A computer programme implementing a business process is therefore not an invention, but a computer program implementing an industrial process may well be.
POSITION IN U.S.A.
The U.S. Patent & Trade mark office has granted patents that may be referred software patents since at least the early 1970’s. In 1972, the U.S.Supreme Court ruled that a patent for process should not be allowed if it “wholly pre-empts a mathematical formula and in practical effect would be a patent on algorithm itself “ adding that, it is said that the decision precludes a patent for any program servicing a computer.
Due to different treatment of federal patent rights in different parts of the country, in 1982 the U.S. Congress created a new court (The Federal Circuit) to hear patent cases.
The recent expansion of the Internet and e-commerce has led to many patents being applied for and granted for business methods implemented in software.
POSITION IN JAPAN :
With respect to Japan, software-related invention are patentable. To qualify as an invention, however there must be “a creation of technical ideas utilizing a law of nature” although this requirement is typically met by “concretely realizing the information processing performed by the software by using hardware resources”2. Software related inventions may be considered obvious if they involve the application of an operation known in other fields, the addition of a commonly known means or replacement by equivalent, the implementation in software of functions which were previously performed by hardware, or the systematization of known human transaction.3
POSITION IN EUROPE:
Within the European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the European Patent Convention (EPC) came into force in the late 1970’s. The
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2. Examination Guideline for Patent & Utility Model in Japan, Japanese Patent Office, May 2005. (P.11)
3. Examination Guideline for Patent & Utility Model in Japan, Patent Office May 2005. (Pg.16-17)
Article 52 of the European Patent Convention excludes “programmes for computers” from patentablity (Art 52(2)) to the extent that a patent application
relates to a computer program “as such” (Art 52(3)). This has been interpreted to mean that any invention which makes a non – obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if that “technical problem” is solved by running a computer program.
Computer implemented inventions which only solve a business problem using a computer rather than a technical problem, are considered non patentable if it also solves a technical problem.
POSITION IN INDIA:
The Indian Patent Act, 1970 does not recognize patent protection for computer programmes. The only available protection for computer programmes and computer data is under S2(O) of the copyright Act 1957, which recognizes
computer programmes and computer data as creative work entitled to copyright protection.
On January 1, 2005 the new patents Amendment Ordinance, 2004, which amends the Patents Act, 1970 has been promulgated after receiving assent from the President of India. Since 1955, this is the third amendments which seeks to comply with India’s commitment under Agreement on Trade Related Intellectual Property Rights (TRIPS). Apart from bringing in the product patent regime in the area of pharmaceuticals and agro chemicals, one of the seminal amendments, this ordinance seeks to bring is to permit the patenting of embedded software. Thus hitherto where the patent act prohibited patenting of computer software per se, the ordinance qualifies this by stating that “a computer programme” “per se” is not patentable “other than its technical application to industry or a combination with hardware”. Therefore, computer programme which can possess a technical qualification to the industry or a computer programme combined with hardware would be capable of being granted a patent under the current Indian laws.
India has adopted more conservative approach with respect to patenting softwares. For filing a patent application for software under the ordinance should ensure that its invention. Firstly, follows the three basic tests of inventive step, novelty and usefulness. Therefore it is important that the software sought to be protected is not merely a new version or an improvement over an existing code.
Further in accordance with the specific requirements of the ordinance with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic too or “embedded” in hardware. This is to prevent against any future litigation or claims of infringements being raised, which is a distinct probability even after the grant of patent.
In a country like India, patenting softwares is of immense use. Here the I.T. Sector has developed leaps and bounds and at the same time there are classes of people in the society who cannot afford to buy a computer.
The Articles 7, of the TRIPS agreement states that the protection & enforcement of intellectual property rights should contribute to the promotion of technological innovation and transfer and dissemination of technology, to the mutual advantage of producers and user of technological knowledge and in a manner conducive to social & economic welfare.
The software patents should be done in such a way that it works on par with the objective enshrined in Article 7 of the TRIPS agreement. The new system which reaches even the under privileged section of the society must be implemented and it should develop the society. The per capita income of the people should raise and therefore computers must become affordable to all. It should be modified to bring about social and economic development. Further Article 27(3) of the TRIPS agreement states that “ Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement”. This provision states that software patents may be allowed if an effective sui generis system of protection is evolved. It paves way for Patenting of softwares.
PROBLEMS TO BE ENCOUNTERED IF PATENTING OF SOFTWARES IS ALLOWED:
The main problem which is to be faced in software patents is that they do not cover entire programs, instead they cover algorithms and techniques i.e., the instruction to tell a computer how to carryout a specific task in a program. Thousand of instructions make up any one computer program. But whereas the unique combination of algorithms and techniques in a program is considered an “expression” (like a book or song) and is covered by copyright law, the algorithms and techniques themselves are treated as procedures eligible for patenting.
When a patent office grants a patent on an algorithms or technique, it is telling programmers that they may now use a particulars method for solving a problem without the permission of the actual inventor or owner of such idea. Thus patenting an algorithm or technique is like patenting a series of musical notes or a chord progression, then forcing composes to purchase a ‘musical sequence license’. This is not easy to check & regulate.
The next problem with the software patents is that too many patents have to be granted for simply doing things, rather than methods of doing things. For examples, I take the patenting of light sources. At various times inventors have patented different methods for creating light such as incandescent bulbs, halogen lamps, neon lamps, LEDs, etc., These are all the unique methods for producing light and could all exist simultaneously without conflict. However, in the world of software patents it is possible to get a patent for simply “creating light” without any specific implementation. The patent examiners should necessarily understand the distinction between “doing something” in software and the “nuts and bolts” (controls, algorithms, and specific implementations) of a particular version. The examiners should be suitably equipped to solve these problems.
Then the next issue which requires attention is that these monopolies however limited, increase innovation and benefits to the consumers. This invariably leads to the creation of market. There is also the benefit to the consumer, which has stems entirely from the notion of competition among suppliers, and if such competition is choked artificially, it is the consumer and the economy that suffers. This has to resolved and regulated.
Then the software industry has developed in leaps and bounds. Today’s computer programs are so complex that they literally contain thousands of algorithms and techniques, each considered patentable as per the standards. It is not reasonable to expect a software company to license each of those patents, or even to bring such a legally risky product into the market. Further new programs and algorithms which advance the existing programs are invented within a short span of time. The upgraded one’s are sought for immediately and the earlier programs become outdated. The amount of time taken to patent a software does not suit this system. The software companies which do not spot the needs and develop solutions as quickly as possible go out of business. The patent system, unfortunately does not favour this speedy nature. It is a slow process. A patent search is a slow, delibrature process that when harnessed to software development, could stop innovation in its tracks. Further since the patent applications are confidential there is simply no way for computer programmers to ensure that what they write will not violate some patent that is yet to be issued.
The next issue which requires attention is the criterion of the search for ‘prior art’. The patent offices uses this to determine whether an invention already exists at the time of a patent application. This is highly complicated to implement in the realm of computer software.
Just as Mathematicians are sometimes unaware that essentially unidentical mental processes are being used in separate areas of mathematics under different technology, different parts of computer science frequently reinvent the same algorithm to serve different purposes. It is unreasonable to expect a patent examiner, pressed for time, would recognize all such duplication.
The search of prior art gets more complicated by the fact that the literature of computer science is unbelievably large. It contains not only academic journals, but also users manuals, published source code, and popular accounts in magazines for computer enthusiasts. If a team of chemists working at a major university might produce 20 or 30 pages of published materials per year, a single programmer might easily produce a hundred times that much. The situation becomes even more complex in the case of patented combination of algorithms and techniques. Programmers often publish new algorithms and techniques, but they almost never publish new ways of combining old ones. The inability to search the literature thoroughly for prior art is crucial, because unless an examiner can find prior art, he or she is all but obligated to issue the patent. This destroys the very concept of being ‘original’. Trivial patents should be discouraged.
An idea can be made to look complex when analysed to death. Even trivial, obvious ideas are made complex and argued that they are non-trivial and obvious only by a hindsight. Such patents should not be allowed.
These are a few of the problems which are to be encountered by India, if software patents are allowed.
CONCLUSION :
The remedies to address this issue is to change the trend of patenting trivial, obvious softwares, The best method I believe is to have the evaluation process entirely in the open so that the academic community of experts can determine themselves whether a concept is novel and non obvious in context of their level of experience in the field. The patent system should be modified to suit the changing trend and encounter the various problems which might arise thereof.
Many companies believe that software patent in general are bad for them & rest of the industry, but feel compelled to seek patents so as to press for cross licenses when threatened by other company with patents. Software developers can protect themselves more effectively from patents by explicitly adopting a non-aggression or mutual defense policy. This means promising in a binding fashion to use their patents only to protect themselves and other from patents.
Eliminating software patents in to is not an advisable remedy as it impedes development. It should be allowed by tackling the problem which arise and substantial remedies should be given for the general good at large.
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