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World Day Against Software Patents
http://editors.cis-india.org/news/world-day-against-software-patents
<b>A global coalition of more than 80 software companies, associations and developers has declared the 24th of September to be the "World Day Against Software Patents". The Hindu, a national daily dedicated one page of its Bangalore edition to software patents and software freedom. Deepa Kurup contributed written two articles titled "Will patenting take the byte out of IT here?" and "How would it be if you read only one type of book?" which reflects some of the concerns of the Free/Libre/Open Source Software community. </b>
<h2>Will patenting take the byte out of IT here? [<a class="external-link" href="http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2008092461910300.htm&date=2008/09/24/&prd=th&">link</a>]</h2>
<p>Deepa Kurup</p>
<blockquote>
<p>There has been little debate on patent laws and the software industry. Today is World Day Against Software Patents.</p>
<p>IT software, services and outsourcing industry has been rooting for software patenting<br />Delhi Patent Office receives around 50 applications for software patents every month</p>
</blockquote>
<p style="text-align: justify; "><br />BANGALORE: Picture this. Indian mathematicians came up with the concept of the “zero” — often touted as India’s greatest contribution to civilisation — and got a patent for it. By now they would have raked in inestimable amounts in royalty. Seems preposterous? Members of the Free Software community say that patenting every other algorithm would be somewhat in the same league.<br /><br />While there has been substantial discussion on how patents will affect the pharmaceutical sector, there has been little debate about its implications on the software industry. To the layman, software patenting sounds like an abstract issue applicable to an even more abstract domain. However, with a growing software industry which is trying to spread its indigenous roots, the issue becomes an important one.<br /><br />Traditionally, software comes under the Copyright Law (just like any literary work) and anyone who writes a program owns it. After Indian Parliament in 2005 scrapped an ordinance which declared “software in combination with hardware” patentable, the controversial and ambiguous clause — “software per se” — has now resurfaced in a recently formulated Patent Manual.<br /><br />And how will the common man be affected by this proposed change in the patent manual? For example, when Global Patent Holdings patented usage of images on websites, a bunch of small and big companies had to cough up to $50 million each. And where does this cost reflect? “The consumer will find that products will get a lot more expensive. Take a DVD player which has about 2,000 patents (many of them software-related). Every time a local company makes a DVD player, they have to pay royalties and the costs will naturally be reflected on the sale price,” says Sunil Abraham of Centre for Internet and Society, a research and advocacy organisation.<br />Backdoor entry<br /><br />The Free Software community feels that patents will make a backdoor entry, courtesy this manual and that ongoing public consultation (by the Patent Office) does not take their voices into account. Mr. Abraham says: “We feel that the powerful software lobbies around are pushing for this clause. If allowed, it will affect the basis of innovation, and will in turn affect the industry.” While the Bangalore consultation was “postponed indefinitely,” the Patent Office in its Delhi meeting said this issue called for an “exclusive meeting with the software industry.”<br /><br />The powerful IT software, services and outsourcing industry has been rooting for software patenting. Under the guile of the seemingly innocuous clause in the Indian Patent Bill 2005, software companies and the MNC lobby is trying to carve out a slice for the specific “software embedded with hardware” industry saying that it will increase the value of indigenous home-grown software, pump up software exports and thereby rake in greater revenue.<br /><br />However, the other side of the story is worth telling. Software, per se, is simply a set of instructions to carry out a certain process. Software experts put forth the argument that big corporations — with money, muscle and hired talent — will seek to impose patents along the software value chain, starting from source code to the recent demand for “embedded software.”<br /><br />Sources in the Delhi Patent Office say that they receive around 50 applications for software patents every month. In the U.S. 25,000 patents are granted every year. In a software-driven world, blurring the lines between software and software “per se” could be risky. “Patenting is an expensive and tedious process. The challenge for every programmer would be to verify each time, to see if any two lines of his code would infringe upon a patent. In the U.S., a single verification can cost as much as $5,000. The fundamental issue is that if I arrive at anything independently, should I not use it only because someone had got it patented before me?” asks a senior official at Red Hat, an open source service provider.<br /><br />A paper written by members of the Alternative Law Forum (ALF), the case against software patenting is presented as a very basic one. “Software evolves much faster than other industries, even with its own hardware industry. Microprocessors double in speed every two years. So, a patent that lasts up to 17 years (minimum period -15) is alarming. In this field, the idea underlying may remain the same but a product has to be replaced on an average of every two years,” it states. The paper also points out that in software “research costs are little because ideas are as abundant as air.”<br /><br />Prashant Iyengar of ALF feels that patent laws will effectively curtail innovation, like it has done in the U.S. “Software, unlike other industries in India, is end-driven but is also on a “body shopping” model. Given that, a strong start-up company will be either be shut down or bought over if patent laws come in,” he explains.</p>
<h3>How would it be if you read only one type of book? [<a class="external-link" href="http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2008092550590300.htm&date=2008/09/25/&prd=th&">link</a>]</h3>
<p>Deepa Kurup</p>
<blockquote>
<p>Little or no attention is paid to what is being taught in schools and colleges</p>
</blockquote>
<p style="text-align: justify; ">BANGALORE: A computer literacy programme in a public sector organisation teaches the following modules: MS Office, MS Power Point, MS Excelsheet and Internet Explorer. A glance through the “computer syllabus” in most schools, and the list is similar. All items on this checklist have one thing in common: proprietary software. So, if every computer user is being taught exclusively on proprietary platforms, would they ever be comfortable switching to the easier, cheaper and readily available alternatives?<br /><br />Advocates of Free Software — software which can be used, studied and distributed without restriction — say that this is a ploy by proprietors to turn learners into potential customers. They allege that educational systems and the State are in cahoots with these large corporations which insist that children and learning adults be taught to only follow their system.<br /><br />In a recent meeting with a State Government official about the use of Free Software on e-governance platforms, the official complained that none of his officials knew how to use it or repair it if things went wrong.<br /><br />“This takes you to the root of the problem,” says Sunil Abraham of Centre for Internet and Society, Bangalore. “Students are taught to use only proprietary software. The Government is subsidising training in proprietary technology and little or no attention is paid to what is being taught in schools and colleges,” he explains.<br /><br />The “back-office” tag that our IT industry has learnt to live with is also a product of this malaise, experts point out. “When students learn only proprietary software, they will qualify only as computer operators and never learn about using the nuts and bolts of the profession. This is one of the reasons why there are no innovative products that come out of this country,” says Mr. Abraham.<br />Simple analogy<br /><br />A simple analogy would be that of a child taking up reading as a habit. If a child reads a lot of books, they say, they learn to write and express better. Academics feel that in the absence of any familiarity with Free Software, where the source is easily available, engineering students and computer graduates never get to read any code and are thus hardly familiar with the languages.<br /><br />FOSS supporters have written to the Ministry of Human Resource Development and several universities to point this out. Anivar Aravind, a member of Free Software Users Group, says that the progress so far has been staggered. Recently, CDAC and Anna Univeristy (KB Chandrashekar Research Centre) came up with a Free Software syllabus and offers trained to teachers in engineering colleges.<br />Cost factor<br /><br />A study by International Open Source Network (an UNDP initiative) study on FOSS and education states that using open source software could reduce the costs involved in ICT education significantly. In a country like ours, this fact that Open Source Software usually involves low or no cost would be perceived as an important step towards reducing the digital divide. With no licensing fee, they can be made available on CD or downloaded.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/world-day-against-software-patents'>http://editors.cis-india.org/news/world-day-against-software-patents</a>
</p>
No publisherpraneshSoftware PatentsAccess to Knowledge2013-01-16T07:15:16ZNews ItemTime Out Bengaluru - Software Patenting
http://editors.cis-india.org/news/time-out-software-patenting
<b>An article by Akhila Seetharaman published as a precursor to the national public meeting on software patents held on 4th in Bangalore. </b>
<p style="text-align: justify; "><a class="external-link" href="http://www.timeoutbengaluru.com/aroundtown/aroundtown_feature_details.asp?code=14">Original article on Time Out Bengaluru website</a></p>
<p style="text-align: justify; ">In August this year, the US Patents and Trademarks Office granted Microsoft ownership of “page up” and “page down”. So in theory, no other company can scroll without permission and acknowledgement to Microsoft in monetary terms.<br /> <br />A number of seemingly ubiquitous software ideas have been patented: the use of tabs to shift from one hyperlink to another on a web page, the “Add to Shopping Cart” function that appears on every online store, automated online loan requests, and even reducing image size to make a webpage load faster.<br /> <br />“Most companies register defensive patents to protect themselves, not offensive ones,” said Sunil Abraham of Centre for Internet and Society. “Not many actively pursue patent infringement, but it is still very scary for a small-time entrepreneur.”<br /> <br />At a time when the Indian Patent Office is in the process of putting together a new Manual of Patent Practice and Procedure, the Centre for Internet and Society is holding a one-day consultation on the issue of software patenting in the city. Participants include the Delhi Science Forum, RedHat, IT for Change, Open Space, as well as the Alternative Law Forum.<br /> <br />From mobile phone technology to pacemakers in healthcare, everybody is dependent on software. “Each software patent is a 17-year monopoly on an idea,” said Anivar Aravind of the Free Software User Group Bangalore.<br /> <br />“If formulaic Hindi films were protected by patent laws, we would be able to make only one film,” joked Abraham. The system of software patenting wipes out smaller businesses and innovation, he said. “Software, like poetry and literary works, is already protected by copyright. After all, Bill Gates made his fortunes from copyright and not patents. But many software companies are trying to get additional protection.”<br /> <br />Copyright and patents are both part of intellectual property rights, but copyright restricts the expression of an idea while patents restrict the idea itself, according to Abraham. Under a patenting regime, even before a kid writes one line of code he has to read many patents.”<br /> <br />Kiran Patil of Turtle Linux Lab agreed. “If every little thing is patented, there’s nothing a developer can do.” He cited Richard Stallman, founder of the Free Software Movement and the GNU (a recursive acronym for GNU’s Not Unix) Project, who likened patents to explosive devices: “Software patents are the software project’s equivalent of land mines: each design-decision carries a risk of stepping on a patent, which can destroy your project.”<br /> <br />Worst of all, the world sees those with patents as the innovators, said Patil, which, according to him, is a big misconception.<br /><br />While corporate giants like Microsoft and IBM fix exchange deals through cross-licensing, smaller companies get left out of the loop entirely. Despite not having many patents of their own, several Indian software companies support software patenting because they have huge contracts with the large software companies in the United States and Europe who do.<br /> <br />The Indian Patent Act of 1970 did not allow for software patents until 2002 when an amendment, which ironically excluded “computer programmes per se” from the scope of patenting, was introduced.<br /> <br />The amendment implied that while computer programmes themselves were not eligible for patents, programmes used in combination with hardware were. The Act was further amended through an ordinance in 2005 to narrow the scope of software excluded, but the ordinance was rejected by the Indian<br /> <br />Parliament and the Act effectively reverted to what it was after the 2002 amendment. “The law has left it somewhat ambiguous,” said Abraham. “Nobody is sure what can or cannot be patented. Many people are using the clause “computer programmes per se” to get pure software patents.”<br /> <br />This occurs either due to incompetence among patent officers or by accident, he said. “While many of the patent officers have expertise in the area of industrial inventions or medical inventions, very few know enough about software patents at the moment.”</p>
<p style="text-align: justify; ">-- Akhila Seetharaman</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/time-out-software-patenting'>http://editors.cis-india.org/news/time-out-software-patenting</a>
</p>
No publisherpraneshOpennessSoftware PatentsAccess to Knowledge2013-01-16T06:39:27ZNews ItemThe new Guidelines for Computer Related Inventions are a big win for FOSS in India!
http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india
<b>India is one of the few countries which permits patenting of software – a monopolization that has only benefited established corporations and largely throttled innovation in the software industry, worldwide. CIS has consistently advocated against patentablity of software and in a major victory last week, software patenting in India died a little more. This happened via the newly issued Guidelines for the Examination of Computer Related Inventions, which introduces a new test to restrict software patenting – in essence the same legal test that CIS had been proposing since 2010. This post highlights the new test and other noteworthy changes in the Guidelines. </b>
<p> </p>
<p>When
the Guidelines for examination of Computer Related Inventions(“
2015 Guidelines”) were released last year, it became <a href="http://www.livemint.com/Industry/XGBbgNllmvuEUhJWs2cWgK/Revised-guidelines-for-software-patents-put-on-hold.html">obvious
that they would have an adverse impact on innovation in the Indian
software industry</a>. Further, the 2015 Guidelines were legally
defective since they ran counter to the object of Section 3(k) of the
Patents Act, 1970, which is to unconditionally exclude mathematical
and business methods, computer programs per se, and algorithms from
patentable subject matter. To stop and prevent egregious harms, <a href="http://sflc.in/wp-content/uploads/2015/09/Letter_CRIGuidelines2015-Prime-Minister.pdf">civil
society organisations collectively wrote to the Prime Minister's
Office</a> flagging off the defects and requested for a recall of the
Guidelines. In
December 2015, the Indian Patent Office <a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance">promptly
recalled the 2015 Guidelines</a> and held a consultation to discuss
the concerns raised in the letter.</p>
<p>Based
on submissions by various stakeholders, the Patent Office released a
<a href="http://ipindia.nic.in/iponew/GuidelinesExamination_CRI_19February2016.pdf">new
set of Guidelines</a>(“Guidelines”), which are not only a
staggering improvisation from all previous versions, but also
introduce a new three step test to determine applicability of section
3(k), an area of Indian patent law that has been notoriously full of
uncertainties:</p>
<blockquote>
<p>5.
Tests/ Indicators to determine Patentability of CRIs (“Computer
Related inventions”):</p>
<p>Examiners
may rely on the following three stage test in examining CRI
applications:</p>
<p>(1)
Properly construe the claim and identify the actual contribution;</p>
<p>(2)
If the contribution lies only in mathematical method, business method
or algorithm, deny the claim;</p>
<p>(3)
If the contribution lies in the field of computer programme, check
whether it is claimed in conjunction with a novel hardware and
proceed to other steps to determine patentability with respect to the
invention. The computer programme in itself is never patentable. If
the contribution lies solely in the computer programme, deny the
claim. If the contribution lies in both the computer programme as
well as hardware, proceed to other steps of patentability.</p>
</blockquote>
<p> </p>
<p>CIS
had proposed the exact same test in its <a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">earlier
submissions(2010)</a> to the Patent Office, albeit worded differently. We
submitted:</p>
<blockquote>
<p><em>"We
propose a new part to the above test to make the clause clearer. The
Manual should specify that “the computer programme portions of any
claimed invention should be treated as if it were covered by prior
art and patentability should thus be determined with respect to the
other features of the invention”. This way, we can ensure that an
invention which merely uses or implements a computer programme is not
granted patent on the basis of the inventiveness of the computer
programme </em>per
se<em>."</em></p>
</blockquote>
<p>Further,
the Guidelines also recognise that CRIs may fall under sections 3(k), 3(l), 3(m) and 3(n):</p>
<blockquote>
<p>2.2. The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for CRIs as under:</p>
<p>3(k)
a mathematical or business method or a computer programme per se or
algorithms;</p>
<p>(l)
a literary, dramatic, musical or artistic work or any other aesthetic
creation whatsoever including cinematographic works and television
productions;</p>
<p>(m)
a mere scheme or rule or method of performing mental act or method of
playing game;</p>
<p>(n)
a presentation of information;</p>
</blockquote>
<p>And thus CRIs as such cannot be patentable, if they fall in either of the above
mentioned exclusions. Overall,
the new Guidelines offer more clarity and stick to the Patents Act,
1970's intention of disqualifying patentability of computer
programmes per se. We will soon post a detailed analysis of the Guidelines. In the meantime, you may read CIS' research on the subject in the section below.</p>
<h3><br /></h3>
<h3>CIS' Research and Submissions against Software Patenting<br /></h3>
<p>Over
the past years, CIS has produced research and consistently made
submissions advocating the roll- back of software patenting:</p>
<p><a name="parent-fieldname-title4"></a><a href="http://cis-india.org/a2k/blogs/arguments-against-software-patents">Arguments
Against Software Patents in India, 2010</a></p>
<p><a name="parent-fieldname-title"></a><a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">CIS
Submission on Draft Patent Manual, 2010</a></p>
<p><a name="parent-fieldname-title1"></a><a href="http://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions">Comments
on the Draft Guidelines for Computer Related Inventions, 2013</a></p>
<p><a name="parent-fieldname-title3"></a><a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions">Guidelines
for Examination of Computer Related Inventions: Mapping the
Stakeholders' Response</a>, 2014</p>
<p><a name="parent-fieldname-title2"></a><a href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">Comments
on the Guidelines for Examination of Computer Related Inventions
(CRIs), 2015</a></p>
<p><a href="http://cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions">CIS'
submission to Indian Patent Office on Examples of Excluded Patentable
subject-matter under Section 3(k) for incorporation in the
yet-to-be-released Guidelines for Computer Related Inventions</a>,
2016</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india'>http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india</a>
</p>
No publishersinhaFeaturedPatentsAccess to KnowledgeSoftware Patents2016-02-24T06:30:37ZBlog EntryThe National Public Meeting on Software Patents
http://editors.cis-india.org/openness/blog-old/the-national-public-meeting-on-software-patents
<b>On Saturday, October 4, 2008, the Centre for Internet and Society, with the support of eighteen other organization, held a meeting on the National Public Meeting on Software Patents in the United Theological College campus. The aim of the event was to explore various issues surrounding software patents, especially from the perspective of the draft Patent Manual.</b>
<p>After introductions by <a href="http://editors.cis-india.org/../../about-us/people/staff/staff#sunil-abraham" class="external-link">Sunil Abraham</a> of CIS, the discussions were kicked off by <a class="external-link" href="http://www.nls.ac.in/faculty_sudhir.html">Sudhir Krishnaswamy</a> (an Assistant Professor at National Law School), who spoke about typology of laws; principle-based arguments for excluding software from patenting; policy-based arguments for the same; and lastly, strategies for combating the patent manual. About the rationale behind excepting software ("computer programmes <em>per se</em>") from patentability, he theorised that given the location of "computer programmes <em>per se</em>" in section 3(k) of the Act, surrounded as it is by "mathematical or business method" and "algorithms", the exception seems to be a principle-based one and not a policy-based one. He also talked about what he saw as the practical realities of the Patent Office, and questioned the role the Draft Manual would actually play in the decisions of Patent Examiners.<br /><br />He listed out economic arguments as:</p>
<ol><li>Inapplicability of the incentive arguments. The software industry does not need patents since copyright covers software, and even if incentives are required, that is incentive enough;</li><li>Return on investment. Short shelf-life, and hence 17-year patent terms are irrelevant when the shelf-life is so small;</li><li>New intermediaries are created, who are neither producers nor consumers of software. These intermediaries who help in price-discovery. They discover value in patents which were previously thought neglected by the process known as patent trolling. </li></ol>
<p><br />Apart from these, he also briefly talked of the legal arguments around software patents, and argued that the question is not only about copyright vs. patent, but also about property vs. contract. He asked questions such as: "What role does copyright play in the software industry, or is contract more important?", and pointed out that while this might have been addressed around a decade ago, those questions need to be revisited given the current scenario. Further, he proposed that the strategies should not revolve solely around the Patent Act and Draft Manual, but around pre- and post-grant oppositions as well.<br /><br /><img class="image-right" src="../NMoSP%20005.jpg/image_mini" alt="Prabir Purkayastha" />Prabir Purkayastha of the Delhi Science Forum and Knowledge Commons spoke next, giving a quick run-through of the history, both legal and philosophical, surrounding software patents in India and in the U.S. and Europe (pointing out that most of the wordings of Draft Manual on this point are borrowed from a similar document in the U.K.). He asked the question of why people are opposing software patents. Is it because it is damaging to 'public interest', because it bad for Indian domestic software industry, or because it is an abstract idea which is sought to be patented in the guise of something else? He concluded that ultimately it is not the manual that groups are opposing, but the notion of software patents themselves. Thus, he focussed on how the phrase <em>"per se</em>" used in the Act ought to be interpreted by the Patent Office so as to give credence to the Indian Parliament's rejection (in 2005) of the 2004 patent ordinance (in which section 3(k) read: "a computer programme <em>per se</em> other than its technical application to industry or a combination with hardware"). Lastly, he talked about the various strategies to be employed in the fight against software patents, including pre- and post-grant oppositions.<br /><br /><a class="external-link" href="http://www.gnu.org.in/about-fsf-india/whos-who">Dr. Nagarjuna G.</a> of the Free Software Foundation of India focussed on what he termed "the absurdity of software patents". He emphasised how software requires an interpreter or hardware, and hence talk of "software <em>per se</em>" often becomes meaningless. Further, he underlined how embedding software in hardware was not innovation in itself, and stressed ont he changing notions of software and hardware as we evolve technologically. His equation of software with abstract ideas gives us a glimpse into the foundation of his objection to software patents.<br /><br /><img class="image-left" src="../PrashantIyengar.jpg/image_mini" alt="Prashant Iyengar" />First up in the second session (which was more focussed on the manual, and the law in India) was <a class="external-link" href="http://www.altlawforum.org/OUR_TEAM/profile">Prashant Iyengar</a> of the Bangalore-based Alternative Law Forum. He first listed out the different kinds of objections to software patents, including the point that there are only limited ways of thinking about programming, as Donald Knuth's <em><a class="external-link" href="http://www-cs-faculty.stanford.edu/~knuth/taocp.html">The Art of Computer Programming</a> </em>shows. Then he went on to go through the history of software patents in India, from the first software patent, granted in 1996, through the 2002 Amendment, the 2004 Ordinance, the 2005 Amendment, and the 2005 and 2008 Draft Manuals. He looked at the vocabulary surrounding software patents, including the words "<em>per se</em>" and "as such", and the cases and legislations from which the language used in the Draft Manual might have been borrowed. He also started a fruitful debate on the different ways to attack the implicit inclusion of that which is not "computer programmes <em>per se</em>" within the scope of patentable subject matter.<br /><br />After Prashant was Venkatesh Hariharan of Red Hat. He spoke on the practical benefits and harms of software patents, and spoke at length about the difference between legal protection of software in the form of patents and via copyright. He pointed to data showing that lawyers are the ones who benefit most from software patents, and that software developers were the ones who suffered most. Pointing to such practical issues such as how does one go about coding a simple e-commerce transaction when more than 4000 patents have already been granted in that area, he brought down the level of discussion from abstract notions of laws and legalities to practical experiences of software programmers.<br /><br />Next, Pranesh Prakash of the Centre for Internet and Society made a presentation on a small sample of software patents that have been applied for in India, and pointed out the infirmities in both the patents that have been applied for, as well as the problems in uncovering these patents because of various errors on the Indian Patent Office website. Going through a few of the patent applications, he showed how a great number applications have very badly worded abstracts, filled with weasel words, whose sole purpose is obfuscating the fact that what is being applied for is a software patent. This, he pointed out, made it difficult to both determine the scope of the applications (subject matter) as well as the innovations contained in the invention (novelty and non-obviousness), and thus difficult to examine from the perspective of pre-grant oppositions.<br /><br />After these presentations, the meeting continued with the Open House session which had many people making presentations, including Abhas Abhinav of <a class="external-link" href="http://www.deeproot.co.in/">DeepRoot Linux</a>, Arun M. of <a class="external-link" href="http://www.gnu.org.in">FSF India</a>, and Joseph C. Matthew, who is the IT Adviser to the Chief Minister, Kerala. With the wrapping up of this session, the proceedings for the day came to a close.</p>
<p> </p>
<h3>Coverage in the press<br /></h3>
<ul><li><a href="http://editors.cis-india.org/openness/world-day-against-software-patents" class="internal-link" title="World Day Against Software Patents">The Hindu (September 25, 2008) - World Day Against Software Patents</a></li><li><a href="http://editors.cis-india.org/openness/time-out-bengaluru-software-patenting" class="internal-link" title="Time Out Bengaluru - Software Patenting">Time Out Bengaluru (October 3, 2008) - Software Patenting</a></li><li><a href="http://editors.cis-india.org/openness/software-patenting-will-harm-industry-consumer" class="internal-link" title="Software patenting will harm industry, consumer">The Hindu (October 5, 2008) - Software patenting will harm industry, consumer</a><br /></li></ul>
<div><span class="Apple-style-span"><br /></span></div>
<h3>Audio Recordings and Slides<br /></h3>
<div>
<ul>
<li>The Principles of Patent Law and Introduction to Software Patents</li>
<ul><li>Sudhir Krishnaswamy (National Law School) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/02.%20Sudhir%20Krishnaswamy.mp3" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/02.%20Sudhir%20Krishnaswamy.ogg" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">ogg</a></li><li>Prabir Purkayastha(Delhi Sience Forum) (Knowledge Commons) |<a href="http://editors.cis-india.org/openness/blog-old/uploads/03.%20Prabir%20Purkayastha.mp3" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/03.%20Prabir%20Purkayastha.ogg" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">ogg</a></li><li>Nagarjuna G.(Free Software Foundation of India) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/04.%20Nagarjuna%20G..mp3" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/04.%20Nagarjuna%20G..ogg" class="internal-link" title="The Principles of Patent Law and Introduction to Software Patents">ogg</a></li></ul>
<li>Software Patents in India: The Indian Patent Act and the Draft Patent Manual</li>
<ul><li>Prashant Iyengar(Alternative Law Forum) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/05.%20Prashant%20Iyengar.mp3" class="internal-link" title="Software Patents in India - The Indian Patent Act and the Draft Patent Manual">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/05.%20Prashant%20Iyengar.ogg" class="internal-link" title="Software Patents in India - The Indian Patent Act and the Draft Patent Manual">ogg</a></li><li style="text-align: left;">Venkatesh Hariharan(Red Hat) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/06.%20Venkatesh%20Hariharan.mp3" class="internal-link" title="Software Patents in India - The Indian Patent Act and the Draft Patent Manual">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/06.%20Venkatesh%20Hariharan.ogg" class="internal-link" title="Software Patents in India - The Indian Patent Act and the Draft Patent Manual">ogg</a></li></ul>
<li>Software Patent Applications in India</li>
<ul><li>Pranesh Prakash (Centre for Internet and Society) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/07.%20Pranesh%20Prakash.mp3" class="internal-link" title="Presentation on Software Patents Applied for in India">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/07.%20Pranesh%20Prakash.ogg" class="internal-link" title="Presentation on Software Patents Applied for in India">ogg</a> | <a href="http://editors.cis-india.org/openness/pranesh-software-patents-draft.ppt" class="internal-link" title="software patent draft pranesh">ppt</a><br /></li></ul>
<li>Open House <br /></li>
<ul><li>Abhas Abhinav (DeepRoot Linux) | <a href="http://editors.cis-india.org/openness/blog-old/uploads/08.%20Abhas%20Abhinav.mp3" class="internal-link" title="Open House">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/09.%20Arun%20M..mp3" class="internal-link" title="Open House">ogg</a></li></ul>
<ul><li>Arun M.(Free Software Foundation of India)| <a href="http://editors.cis-india.org/openness/blog-old/uploads/09.%20Arun%20M..mp3" class="internal-link" title="Open House">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/09.%20Arun%20M..ogg" class="internal-link" title="Open House">ogg</a></li><li>Joseph Mathew (IT Adviser to the Chief Minister, Kerala)| <a href="http://editors.cis-india.org/openness/blog-old/uploads/10.%20Joseph%20Mathew.mp3" class="internal-link" title="Open House">mp3</a> | <a href="http://editors.cis-india.org/openness/blog-old/uploads/10.%20Joseph%20Mathew.ogg" class="internal-link" title="Open House">ogg</a></li></ul>
</ul>
</div>
<div><span class="Apple-style-span"><br /></span></div>
<div><span class="Apple-style-span"><br /></span></div>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/blog-old/the-national-public-meeting-on-software-patents'>http://editors.cis-india.org/openness/blog-old/the-national-public-meeting-on-software-patents</a>
</p>
No publisherpraneshConferenceCampaignSoftware PatentsFLOSSOpennessMeeting2011-08-23T03:02:56ZBlog EntrySeminar on Software Patent and the Commons
http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons
<b>A pre-grant opposition has been filed against a software patent application filed in the patent office by Certicom, a wholly owned subsidiary of Research in Motion (RIM), manufacturers of Blackberry. The opposition was filed on August 31, 2010 by the Software Freedom Law Centre which has recently expanded its operations to India. This exciting development was announced by Mishi Choudhary from SFLC on the lines of the seminar on “Software Patents and the Commons” organised on 1 September 2010 in Delhi jointly by SFLC, the Centre for Internet and Society, the Society for Knowledge Commons and Red Hat. Filing more such oppositions to software patents in India was in the pipeline and this is just the beginning of a movement to take on monopolisation of knowledge and ideas through patenting software, the organisers said.</b>
<p>Software patent opposition is still in its nascent stage in India while several oppositions have been filed against software patents in the US and the EU. The harmful effects of software patents are little known to the Indian public, especially from the context of its danger to development in small and medium size enterprises, as pointed out by Pranesh Prakash from the Centre for Internet and Society who spoke about why software patents are bad for innovation and development in society and also in the software industry, in particular.</p>
<p>In the same context, Venkatesh Hariharan from Red Hat as also Mr. T.C. James, Director of the National Intellectual Property Organisation spoke about the growing importance of free and open source software in education, governmental agencies and as a key agent in information technology policy making in India. “Out of 500 super computers in the world, 446 are running on Linux”, he said, talking about how open source software makes computing highly accessible and affordable while allowing for improvements to be made to the software by any user and releasing it back to benefit the whole community. Dr. Anshu Bhardwaj involved in the Open Source Drug Discovery project undertaken by CSIR, spoke at length about the project as a live demonstration of the power of open source software in impacting drug access and development and health care reform across communities at highly economical rates.</p>
<p>Prof. Eben Moglen, Executive Director of Software Freedom Law Centre in New York who was the keynote speaker at the conference spoke about the growth of the free software and open source movement based on the principle of equating knowledge with commons – that is, a good to be commonly shared by all members of the public – resulting in access to and sharing of knowledge and distribution of information in society for greater innovation, creation of new ideas, communication and development. Dr. Abhijit Sen, member of the Planning Commission was the other keynote speaker who stressed on the role of the government and the policy making bodies to ensure that knowledge and education is accessible and shared without restrictions in such a way that it is not misused by the members of the society.</p>
<p>Other notable speakers in the event included Prabir Purkayastha from the Society for Knowledge Commons, Pradyut Bora, Chief Convenor of BJP's information and technology cell, Jaijit Bhattacharjee from Hewlett Packard and Sudhir Krishnaswamy, Professor, National University of Juridical Sciences. The event also witnessed the participants discuss the various strategies to be used from the perspective of legal analysis as well as policy reform, for opposing software patents filed or granted in India. Indian patent law clearly declares computer programmes per se or software patents to be unpatentable. Prabir Purkayastha pointed out that the most important and major scientific discoveries in history have not been patented and that this has, in no way prevented new ideas from being created and has in fact fostered such innovation. In spite of such a clear legal restriction on grant of software patents, around 1000 software patents have been filed in the patent offices in India in the last year. This trend is extremely disturbing since it poses a serious threat to access to knowledge and distribution of information in society in addition to stifling innovation and development in the software industry.</p>
<p>The seminar was attended by people from diverse backgrounds including the IT industry, civil society organisations, and groups working in pharma patent advocacy, media persons and government officials.</p>
<h3>Videos</h3>
<p>
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<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons'>http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons</a>
</p>
No publisherpraskrishnaIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-10-23T14:22:15ZBlog EntrySecond Response to Draft National Policy on Open Standards for e-Governance
http://editors.cis-india.org/openness/publications/standards/second-response
<b>Another draft (labelled "version 2", dated May 26, 2009) of the draft national policy on open standards for e-governance was made available to Fosscomm, while many software companies were speaking out against NASSCOM's position on the policy. CIS drafted a second response addressing both the allegations against NASSCOM as well as the few shortcomings we perceive in the draft policy.</b>
<p>To<br />Shri Shankar Aggrawal<br />Joint Secretary (e-Governance)<br />Department of Information Technology<br />Ministry of Communications and Information Technology</p>
<p>Tuesday, July 7, 2009</p>
<p>Dear Sir,</p>
<h3>Sub: Comments on Draft National Policy on Open Standards for e-Governance (version 2)</h3>
<p>I am writing on behalf of the Centre for Internet and Society, which is a Bangalore-based civil society organization involved both in research and policy advocacy. Public accountability and digital pluralism are two of our core concerns, and it is for this that we are writing to you today. As a natural corollary of our mission, we aim at representing the concerns of citizens and consumers. You would recall that we had submitted comments to the call for comments you had put out for the draft National Policy on Open Standards for e-Governance last year (archived at <http://cis-india.org/advocacy/os/iosp/the-response/>). </p>
<p>We have recently received what appears to be a newer draft (version 2) of the National Policy on Open Standards for e-Governance, dated May 26, 2009. We are yet again very pleased to note the progressive nature of this document and wish to congratulate the government on its decision to promote the interests of the citizens of India over the narrow partisan interests of a few companies which wish to promote proprietary standards.</p>
<p>It has brought to our notice by some in the software industry that the National Association of Software and Services Companies (NASSCOM) has argued for the dilution of the definition of open standards by including standards licensed under “reasonable and non-discriminatory” terms to be considered “open”, and has also called for multiple standards in the same domain to be considered valid as a rule under the policy. We believe both these demands go against the interest of consumers of standards — which in this case is the Indian government — and are thus against the interest of citizens as well, since the Indian government handles data on behalf of its citizens.</p>
<p>Even “reasonable and non-discriminatory” terms of licensing of standards are in fact discriminatory as they prevent the development of free/libre/open source software based on those standards. And while having multiple implementations of a standard is beneficial as it increases consumer (i.e., governmental) choice, having multiple incompatible standards is detrimental to the government's interest as the policy itself recognizes in paragraph 4.2, and the very purpose (as enumerated in paragraphs 1, 3, and 4) of having standards is defeated. Even if the multiple standards are bi-directionally interoperable, additional costs are incurred in having concurrent multiple standards.</p>
<p>Thus, one hopes that the the threshold of “national interest” mentioned in paragraph 6.4.1 is set to a high level. Lastly, the views put forth by NASSCOM seem not to be truly legitimate as it has been the complaint of some that NASSCOM did not hold an open consultation with its own members before formulating its views. There are software giants, including IBM, Sun, and Red Hat, that have openly criticized the NASSCOMM position on open standards. More importantly, NASSCOM's position does not concur with what we believe is in the best interest of small and medium software enterprises, which constitute the bulk of the Indian software industry. We pray that you shall keep this in mind while considering NASSCOM's views.</p>
<p>We believe that apart from the technical reasons to favour open standards, there are many public interest reasons as well. We believe that the adoption of open standards is a step towards the promotion of equitable access to knowledge to all the people of our country. We further believe that public accountability will be served greatly by adoption of an open standards policy by the Central and State governments. While even developed countries (such as those of the EU) are mandating open standards in all governmental departments, processes, and interactions, it is developing countries that stand to gain most from open standards. Proprietary standards place a larger burden on developing economies than developed as developing economies have a greater need to participate in the global network by using standards, but do have lesser capabilities than developed economies in terms of paying for royalties.</p>
<p>On the document itself, while there are many reasons to hail it, we believe there are still a few shortcomings which we wish to bring to your notice.</p>
<h3><br /></h3>
<h3>Issue 1: Possibility of following letter of policy while violating its spirit</h3>
<p><strong>Explanation</strong><br />Sometimes private companies can interfere with the standardisation process by exerting undue influence on the members of the standard setting body. That such undue influence have been sought to be applied even in India recently shows that this is not mere conjecture or idle speculation. Given this background, the document should note this as a problem and note that remedial measures could be undertaken in the event such undue influence comes to light.</p>
<p><strong>Resolution</strong><br />Introduce language, such as that used in the EU EIF, stating:<br />“Practices distorting the definition and evolution of open standards must be addressed immediately to protect the integrity of the standardisation process.”</p>
<h3><br /></h3>
<h3>Issue 2: Patenting and licensing of government-developed standards</h3>
<p><strong>Explanation</strong><br />Paragraph 6.3 of the draft policy allows the government to opt for the development of a new standard by a Government of India-identified agency in case no standard is found to meet the government's functional requirements. However, it is not clear under what terms this standard will be available.</p>
<p><strong>Resolution</strong><br />Introduce a paragraph 6.3.1 stating:<br />“Any standard developed by or on behalf of the government shall be patent-free and the specifications of such a standard will be published online and will be available to all for no cost. Along with the standard, the government shall also provide, or shall cause to be provided, a free/libre/open source reference implementation of that standard.”</p>
<h3><br /></h3>
<h3>Issue 3: No framework provided for review or phasing out interim standards</h3>
<p><strong>Explanation</strong><br />Paragraph 6.2 permits the government to adopt a non-open “interim” standard (one which does not fulfil all the mandatory requirements of open standards as laid out in 5.1) if no open standard exists in the specific domain for which the standard is required. This however does not have a clause necessitating the phasing out of such an interim standard.</p>
<p><strong>Resolution</strong><br />A review mechanism should be provided for periodic evaluation of all standards selected by the government, especially those designated as interim standards. A new paragraph 7.1.1 could be added:<br />“All standards selected through the processes outlined in this policy shall undergo an annual review by the Apex Body on e-Governance Standards, and all those designated as interim standards shall be reviewed biannually.”</p>
<h3><br /></h3>
<h3>Issue 4: Problematic definition in the glossary</h3>
<p><strong>Explanation</strong><br />In Appendix A, the definition of “patents” (A.12) states: “The additional qualification 'utility patents' is used in countries such as the United States to distinguish them from other types of patents but should not be confused with utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.” Many of these references are U.S.-specific and are not valid forms of patents in India (e.g. biological patents, business method patents, and software patents).</p>
<p><strong>Resolution</strong><br />Delete the last two sentences in A.12</p>
<p><br />We once again wish to compliment the government on developing such a strong policy on open standards, and hope that our suggestions are incorporated into the text of the final version. We further hope that the policy will be notified at the earliest, as there has already been considerable opportunity for the public and industry to comment on the draft versions of the policy.</p>
<p><br />Yours sincerely,</p>
<p>Pranesh Prakash<br />Programme Manager<br />Centre for Internet and Society</p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/publications/standards/second-response'>http://editors.cis-india.org/openness/publications/standards/second-response</a>
</p>
No publisherpraneshOpen StandardsPublic AccountabilitySoftware Patents2009-07-07T16:49:37ZPageResearch Project on Open Video in India
http://editors.cis-india.org/openness/blog-old/open-video-research
<b>Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions.</b>
<p> </p>
<h3>Project Timeline</h3>
<p>From mid-April to mid-July.<br /><br /></p>
<h3>Summary of Outputs</h3>
<ol><li>A 15-20 page paper surveying the online video environment in India and the opportunities it presents for creative expression, political participation, social justice, and other such concerns. The paper should deal with the structural limitations of the medium (e.g.: limited bandwidth, IP lobbies discourage re-appropriation of cultural materials, online video is inaccessible to the deaf, and so on) and how they can be addressed. Recommendations should be bold but in touch with the real policy and business frameworks of present-day India.</li><li>Several 1-2 page briefs on specific policy matters like: where is jurisdiction being exercised? what are the policy inflections? and, what interventions are needed to solve the structural limitations of the medium?</li></ol>
<p> </p>
<h3>Survey Paper</h3>
<p>The survey paper should describe the online video scenario in India, and three or more policy tensions. The paper should focus on areas of intellectual property rights, network issues, standards, device freedom and interoperability, accessibility, etc. The Open Video Alliance website[ova] for a complete list of relevant issues.</p>
<p>Overall, it should paint both a qualitative as well as a quantitative picture of online video in India, and in which structural improvements are needed (if any) to empower individuals.This paper should not be viewed as a recommendation to policymakers but instead as a general interest document which will inform and appeal to many audiences. While we expect the paper to span several distinct issues, there should be a prevailing narrative to weave them together.<br /><br /></p>
<h3>Basic Assumptions</h3>
<p>We want online video to be a participatory and collaborative social medium powered by open source. We also value the ability of individuals to express themselves using these tools, and the ability of new entrants to challenge incumbents and innovate on top of existing technologies. No time is needed to be spent establishing these values—instead, through this paper we try to identify structural improvements to the online video medium. How do we get from the status quo to the ideal open video environment? What investments must be made? What protections must be put into place for users, producers, etc.? Further, we should be able to make some broad recommendations to governments, foundations, and big institutions.<br /><br />Because the network and IP enforcement environment in India are still malleable, we want to stress that there are many possible shapes that the online video medium could take. Our goal is to shine some light on how a medium that privileges the values outlined above could take shape.<br /><br /></p>
<h3>Suggested Methodology</h3>
<p>First, you would need to carry out a basic survey of the literature. Second, you should talk to various organizations using video, discover what they consider the structural limitations of online video, and what might be considered open video practices: some are legal, some are technical. You would use this data to direct original research and weave your findings into an engaging narrative.<br /><br /></p>
<h3>Next Steps</h3>
<ul><li>You send 2 writing samples, a CV, and letter of recommendation;</li><li>We'll discuss the unifying themes and identify a more detailed timeline;</li><li>We produce a contract;</li><li>We Pick a regular time to meet every other week, to track progress.<br /></li></ul>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/blog-old/open-video-research'>http://editors.cis-india.org/openness/blog-old/open-video-research</a>
</p>
No publisherpraneshIntellectual Property RightsOpen ContentProjectsSoftware Patents2011-08-23T02:51:36ZBlog EntryLecture by Eben Moglen and Mishi Choudhary
http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary
<b>The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.</b>
<p>Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.<br /><br />Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases <br /><br />Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo. <br /><br />This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.<br /><br />On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.<br /><br />Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.<br /><br />Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary'>http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary</a>
</p>
No publisherpraneshIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-08-23T02:55:59ZBlog EntryIP Meetup #02: Prabir Purkayastha on the CRI Guidelines and software patenting in India
http://editors.cis-india.org/a2k/events/ip-meetup-02-prabir-purkayastha-on-the-cri-guidelines-and-software-patenting-in-india
<b></b>
<h3>Prabir Purkayastha will deliver a short talk on what the Guidelines on Computer Related Inventions mean for software patenting, and the way forward, on Sunday, March 20th, 2016 at the CIS Delhi office, at 4 p.m. <br /></h3>
<div id="parent-fieldname-text-90eeae1895bf44d29641567f7fcf5d44">
<p style="text-align: justify;"> </p>
<p style="text-align: justify;">We would like to invite you to the second session of a series of IP focused meetups. The meetups are
aimed at bringing folks together working within or interested in IP law,
to discuss recent developments with reference to access to knowledge,
climate change, health, trade, etc.</p>
<p>The talk will be followed by a round of discussion, after which the
floor will be thrown open for other pressing/relevant IP developments.</p>
<p>Please join us for tea and refreshments at 3.30 pm.</p>
<p>Please RSVP by dropping a line at <a class="mail-link" href="mailto:anubha@cis-india.org">anubha@cis-india.org</a>.</p>
<p><strong>CIS Delhi's location on Google Maps: <a href="https://goo.gl/maps/nPKkoQFhRSt">https://goo.gl/maps/nPKkoQFhRSt</a></strong></p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/events/ip-meetup-02-prabir-purkayastha-on-the-cri-guidelines-and-software-patenting-in-india'>http://editors.cis-india.org/a2k/events/ip-meetup-02-prabir-purkayastha-on-the-cri-guidelines-and-software-patenting-in-india</a>
</p>
No publishersinhaOpen SourceAccess to KnowledgeSoftware PatentsIntellectual Property RightsFOSS2016-03-29T17:06:13ZEventIndian Patent Office updates Guidelines for Examination of Computer Related Inventions, yet again
http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again
<b>By discarding a test brought into force last year, the updated Guidelines take no concrete position to help clarify the ambiguity around patentability of software inventions in India.</b>
<p></p>
<p></p>
<p>The Office of the Controller General of Patents, Designs and
Trademarks (CGPDTM) issued new <a href="http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf">Guidelines
on Examination of Computer Related Inventions (CRIs</a>) on 30<sup>th</sup> June,
making it easier to obtain a software patent in India (as compared to standards set in the 2016 Guidelines).</p>
<h2>New Changes</h2>
<p>The most important change is <a href="https://cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india">removal
of a test notified in 2016</a> which made CRIs patent eligible provided there
was a novel hardware component in the patent application. Accordingly, references
in the guidelines which aided interpretation of the 2016 test have been
deleted. Additionally, the new guidelines exclude the layout of integrated
circuits as patentable subject matter in CRIs.</p>
<p>The CGPDTM has refrained from prescribing a new test to
determine patentability of CRIs.</p>
<p>In the absence of specific guidance, it is likely that examiners will heavily rely on section 3(k) of the Patents Act, 1970, the Manual of Patent Practice and Procedure, and the views expressed by the <a class="external-link" href="http://164.100.47.5/webcom/MoreInfo/PatentReport.pdf">Joint Parliamentary Committee</a> in respect of "per se":</p>
<p> <em> "In the new proposed clause (k) the words ''per se" have been
inserted. This change has been proposed because sometimes the computer
programme may include certain other things, <strong>ancillary thereto or developed thereon.</strong> The intention here is not to reject them for grant of patent if they are inventions. However, the <strong>computer programmes as such</strong> are not intended to be granted patent. This amendment has been proposed to clarify the purpose." </em></p>
<h2>Policymaking re Guidelines on Examination
of CRIs</h2>
<p>After years of deliberation, the Indian Patent Office <a class="external-link" href="https://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">first proposed
a test in 2015</a> which was met with disapproval as it lowered the bar for
patentability of CRIs. After a stakeholder consultation, the IPO revised the test
in 2016, raising the bar of patent eligibility of CRIs, which was favorable to the
growth of small and medium enterprises in the Indian IT industry. The present 2017
guidelines are a result of streamlining stakeholder consultations conducted in
response to the 2016 guidelines as per a <a href="http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office_Order_No_36_of_2017_for_Revised__Guidelines_for_Examination_of_CRIs.pdf">circular</a>
by the IPO.</p>
<p>In the following table, I list the substantive changes made
in the new guidelines (in comparison to the 2016 Guidelines) and make some
preliminary remarks:</p>
<p></p>
<p></p>
<table class="grid">
<tbody>
<tr>
<td><strong>Type of Change</strong></td>
<td><strong>Change</strong></td>
<td><strong>Remarks</strong></td>
</tr>
<tr>
<td>Inserted in 2.1, <strong>Legal Provisions relating to CRIs</strong>
and
Deleted in 4.1, <strong>Novelty</strong></td>
<td>Section 2 (1)(l) defines “new invention” in The Indian Patents Act,
1970 as follows:
"New invention" means any invention or technology which has
not been anticipated by publication in any document or used in the country or elsewhere in the world before the date
of filing of patent application with complete specification, i.e. the subject
matter has not fallen in public domain or that it does not form part of the
state of the art</td>
<td><br /></td>
</tr>
<tr>
<td><br /><br />Added in 2.2, <strong>List of explicit exclusions from patentability under
section 3 for CRIs</strong></td>
<td>Section 3(o) topography of integrated circuits</td>
<td>Contemplates layout of integrated circuits as subject matter relating
to CRIs</td>
</tr>
<tr>
<td>Parts deleted in 4.3, <strong>Industrial Applicability</strong></td>
<td><br /><br />Industry herein is to be understood broadly having any useful and
practical activity while excluding intellectual or aesthetic activity.
Claims relating to “Method of playing games” and “computer
programming languages” are not considered to be industrially applicable. A
method for effecting introductions with a view to making friends is not
industrially applicable even though it could be carried out by a commercial
enterprise.
The determination of industrial applicability in case of CRIs is very
crucial since applications relating to CRIs may contain only abstract
theories, lacking in industrial application.</td>
<td>Only an explanation of industrial applicability in the general
context of patent law remains.</td>
</tr>
<tr>
<td>Deleted in 4.4, <strong>Sufficiency of Disclosure </strong>(strikethrough indicates
deleted part)</td>
<td><br /><br />4.4.1 Fully and particularly (What):
1. If the patent application
relates to apparatus/system/device i.e hardware based inventions, each and
every feature of the invention shall be described with suitable illustrative
drawings. <s>If these system/device/apparatus claims are worded in such a way
that they merely and only comprise of a memory which stores instructions to
execute the previously claimed method and a processor to execute these
instructions, then this set of claims claiming a system/device /apparatus may
be deemed as conventional and may not fulfil the eligibility criteria of
patentability. </s>
If, however, the invention relates to ‘method’, the necessary
sequence of steps should clearly be described so as to distinguish the
invention from the prior art with the help of the flowcharts and other
information required to perform the invention together with their modes/means
of implementation.
[…]</td>
<td>Loosened the disclosure requirement</td>
</tr>
<tr>
<td>Deleted in 4.4, <strong>Sufficiency of Disclosure</strong> (strikethrough indicates
deleted part)</td>
<td><br />4.4.4 Form and substance:
[…]
Even when the issue is related to hardware/software relation, <s>(e.g.,
when the claims recite ‘processor is programmed to… or ‘apparatus comprising
a processor and configured / programmed to…..)</s> the expression of the
functionality as a ‘method’, is judged on its substance. It is well established that, in
patentability cases, the focus should be on the underlying substance of the
invention, not the particular form in which it is claimed. The Patents Act
clearly excludes computer programmes per se and the exclusion should not be
allowed to be avoided merely by camouflaging the substance of the claim by
wording <s>(e.g. different subroutines are performed in different physical
locations such as processors will not suffice).</s></td>
<td>Removed illustrations</td>
</tr>
<tr>
<td>Replaced in 4.4, <strong>Sufficiency of Disclosure</strong> (strikethrough indicates
deleted part)</td>
<td><br /><br />4.4.5 Means Plus Function:
<p>Further, if the specification supports <s>implementation</s>
of the invention solely by the computer program then in that case means plus
function claims shall be rejected as these means are nothing but computer
programme per se.</p>
<p>Where no structural features of those means are disclosed in
the specification and specification supports <s>implementation</s> of the
invention solely by the software then in that case means in the “means plus
function” claims are nothing but software.</p>
</td>
<td> Replaced both struck out words by<em> performing the invention</em><br /></td>
</tr>
<tr>
<td><br /><br />Added in 4.5, <strong>Determination of excluded subject matter relating to
CRIs</strong></td>
<td><br />[…] Hence, along with determining the merit of invention as envisaged
under Sections 2(1) (j), (ja) and (ac), the examiner should also determine
whether or not they are patentable inventions under Section 3 of the Act.</td>
<td><br /></td>
</tr>
<tr>
<td><br />Parts deleted in 4.5.1. <strong>Claims directed as “Mathematical Method”</strong>:</td>
<td><br />[…]
Some examples which will attract exclusion:
acts of mental skill. e.g. A
method of calculation, formulation of equations, finding square roots, cube
roots and all other methods directly involving mathematical methods like
solving advanced equations of mathematics.
merely manipulates abstract
idea or solves a purely mathematical problem without specifying a practical
application.</td>
<td><br /></td>
</tr>
<tr>
<td>Added in in 4.5.1. <strong>Claims directed as “Mathematical Method”</strong> (emphasis
supplied)</td>
<td><br /><br />4.5.1. Claims directed as “Mathematical Method”:
Mathematical methods are a particular example of the principle that
purely abstract or intellectual methods are not patentable. Mathematical
methods like method of calculation, formulation of equations, finding square
roots, cube roots and all other similar acts of mental skill are therefore,
not patentable. <strong><u>Similarly mere
manipulations of abstract idea or solving purely mathematical
problem/equations without specifying a practical application also attract the
exclusion under this category.</u></strong>
<strong> </strong>
However, mere presence of a mathematical formula in a claim, to
clearly specify the scope of protection being sought in an invention, may not
necessarily render it to be a “mathematical method” claim. <strong><u>Also, such exclusions may not apply to
inventions that include mathematical formulae and resulting in systems for
encoding, reducing noise in communications/ electrical/electronic systems or
encrypting/ decrypting electronic communications</u></strong><u>.</u></td>
<td>Illustrations added to show that CRIs that include mathematical
formulae and result in systems for encoding, reducing noise in
communications/ electrical/electronic systems or encrypting/ decrypting
electronic communications, will not be ineligible merely by virtue of
presence of mathematical formulae. They will not necessarily construe a claim
on mathematical method.</td>
</tr>
<tr>
<td><br /><br />Part deleted in 4.5.4, <strong>Claims directed as “Computer Programme per se”</strong></td>
<td>The computer programme per se is excluded from patentability under
section 3(k) apart from mathematical or business method and algorithm</td>
<td><br /></td>
</tr>
<tr>
<td><br /><br />Inserted in 4.5, <strong>Determination of excluded subject matter relating to
CRIs </strong>(emphasis supplied)</td>
<td>4.5.8. Topography of integrated circuits
The above criterion is to be judged as per the procedures as laid out
in chapter 08.03.05.14 of the Manual</td>
<td>Contemplates layout of integrated circuits as subject matter relating
to CRIs</td>
</tr>
<tr>
<td>Parts deleted in 5, <strong>Tests/Indicators to determine Patentability of
CRIs</strong></td>
<td><br /><br />5. Tests/Indicators to
determine Patentability of CRIs:
Examiners may rely on the following three stage test in examining CRI
applications:
(1) Properly construe the
claim and identify the actual contribution;
(2) If the contribution
lies only in mathematical method, business method or algorithm, deny the
claim;
(3) If the contribution lies
in the field of computer programme, check whether it is claimed in
conjunction with a novel hardware and proceed to other steps to determine
patentability with respect to the invention. The computer programme in itself
is never patentable. If the contribution lies solely in the computer
programme, deny the claim. If the contribution lies in both the computer
programme as well as hardware, proceed to other steps of patentability.</td>
<td>Implication is that this test is no longer in force for examination
of patentability of CRIs</td>
</tr>
<tr>
<td><br /><br />Deleted 6, <strong>Illustrative examples of Claims which are not patentable</strong></td>
<td><em>Refer to 2016 Guidelines</em></td>
<td><br /></td>
</tr>
</tbody>
</table>
<p> Note: This post has been updated to reflect the change in point 4.4.5, which was previously missed by the author.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again'>http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again</a>
</p>
No publishersinhaIndian Patents Act Section 3(k)PatentsAccess to KnowledgeSoftware Patents2017-07-05T07:42:44ZBlog EntryGuidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response
http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions
<b>The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses. </b>
<p style="text-align: justify; "><b> I. </b> <b>Introduction </b></p>
<p style="text-align: justify; ">In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the <a href="http://ipindia.nic.in/iponew/draft_Guidelines_CRIs_28June2013.pdf">Draft Guidelines for Examination of Computer Related Inventions</a> ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">most widely accepted interpretation of this Section 3(k)</a>, there have been contradictory interpretations as well.</p>
<p style="text-align: justify; ">In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/CRI%20Comments-index.html">position of the stakeholders</a> on each ambiguous point. Lastly, Part V would give the conclusion.</p>
<p style="text-align: justify; "><b> II. </b> <b>Legislative History </b></p>
<p style="text-align: justify; ">Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">do not produce anything tangible.</a> However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.</p>
<p style="text-align: justify; ">The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a <a href="http://164.100.47.5/webcom/MoreInfo/PatentReport.pdf">Joint Parliamentary Committee</a> ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:</p>
<p style="text-align: justify; ">" <i> In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, <b>ancillary thereto or developed thereon.</b> The intention here is not to reject them for grant of patent if they are inventions. However, the <b>computer programmes as such</b> are not intended to be granted patent. This amendment has been proposed to clarify the purpose. </i> "</p>
<p style="text-align: justify; ">The Bill was then enacted as the <a href="http://www.ipindia.nic.in/ipr/patent/patentg.pdf">Patent (Amendment) Act, 2002</a> and reads in its current form as:</p>
<p style="text-align: justify; ">Section 3(k) - <i>"a mathematical or business method or a computer programme per se or algorithm"</i></p>
<p style="text-align: justify; ">This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.</p>
<p style="text-align: justify; ">In December, 2004 the <a href="http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf">Patent (Amendment) Ordinance, 2004</a> ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).</p>
<p style="text-align: justify; ">"<i>(k) a computer programme per se other than its technical application to industry or a combination with hardware;</i></p>
<p style="text-align: justify; "><i>(ka) a mathematical method or a business method or algorithms;</i> ".</p>
<p style="text-align: justify; ">In February, 2005 the Ordinance was introduced in the Parliament as the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">Patent (Amendment) Bill, 2005</a>.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " <i> modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware </i> ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">press note, by the Ministry of Commerce and Industry</a> it was noted that:</p>
<p style="text-align: justify; "><i> "It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals." </i></p>
<p style="text-align: justify; ">Later, in the same year the IPO release a <a href="http://ipindia.nic.in/ipr/patent/manual-2052005.pdf">Manual of Patent Office Practice and Procedure, 2005</a>. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.</p>
<p style="text-align: justify; ">Similarly, the <a href="http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Commerce/88th%20Report.htm"> Parliamentary Standing Committee on Commerce, 88<sup>th</sup> Report on the Patent and Trademark System in India (2008) </a> noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.</p>
<p style="text-align: justify; ">The 2011 <a href="http://www.ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20pdf/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure.pdf"> Manual of Patent Office and Procedure, 2011 </a> tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that<b>:</b></p>
<p style="text-align: justify; "><i> "If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention." </i></p>
<p style="text-align: justify; "><b> III. </b> <b>Draft Guidelines for Examination of Computer Related Inventions, 2013</b></p>
<p style="text-align: justify; ">The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.</p>
<p style="text-align: justify; "><b><i>Terms/ Definitions used while dealing with CRIs </i></b></p>
<p style="text-align: justify; ">At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.</p>
<p style="text-align: justify; ">Category I- Where the definition/term was borrowed from some other Indian stature. <br /> Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.</p>
<p style="text-align: justify; ">Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from <a href="http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf">Information Technology Act, 2000</a> ('IT Act'). The definition of Computer Programme was taken from <a href="http://copyright.gov.in/documents/copyrightrules1957.pdf">Copyright Act, 1957</a>. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.</p>
<p style="text-align: justify; ">Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.</p>
<p style="text-align: justify; "><b><i>Categorization of CRI claims </i></b></p>
<p style="text-align: justify; ">In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.</p>
<ul style="text-align: justify; ">
<li> Method/process: </li>
</ul>
<p style="text-align: justify; ">Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.</p>
<ul style="text-align: justify; ">
<li> Apparatus/system </li>
</ul>
<p style="text-align: justify; ">The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.</p>
<ul style="text-align: justify; ">
<li> Computer readable medium </li>
</ul>
<p style="text-align: justify; ">While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.</p>
<ul style="text-align: justify; ">
<li> Computer program product </li>
</ul>
<p style="text-align: justify; ">This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.</p>
<p style="text-align: justify; "><b><i>Examination Procedure used by IPO </i></b></p>
<p style="text-align: justify; ">The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.</p>
<p style="text-align: justify; ">Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.</p>
<p style="text-align: justify; ">The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.</p>
<p style="text-align: justify; "><b> IV. </b> <b>Response by Stakeholders</b></p>
<p style="text-align: justify; ">Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.</p>
<p style="text-align: justify; ">Our compilation (and the first level of analysis) of the Stakeholders' Responses is <a href="http://editors.cis-india.org/a2k/blogs/cri-comments-comparison-table.xlsx" class="internal-link">available here</a>.</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/DivisionofStakeholdersComments.png" alt="Division of Stakeholders' Comments" class="image-inline" title="Division of Stakeholders' Comments" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:</p>
<p style="text-align: justify; ">1. Civil Society</p>
<p style="text-align: justify; ">2. Law Firm/Advocates ('law Firms')</p>
<p style="text-align: justify; ">3. Industry/ Industry Representatives/Global Trade Body (Industry)</p>
<p style="text-align: justify; ">4. Students</p>
<p style="text-align: justify; ">These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.</p>
<p style="text-align: justify; "><b><i>Interpretation of Section 3(k) </i></b></p>
<p style="text-align: justify; ">One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".</p>
<p style="text-align: justify; ">The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch </a> ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.</p>
<p style="text-align: justify; ">The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.</p>
<p style="text-align: justify; ">While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> ).</p>
<p style="text-align: justify; ">Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a><a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/StakeholdersOpinion.png" alt="Stakeholders' Opinion" class="image-inline" title="Stakeholders' Opinion" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.</p>
<p style="text-align: justify; "><b><i>Section 5.4.6- Hardware </i></b></p>
<p style="text-align: justify; ">The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<p style="text-align: justify; ">The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Kan & Krishme </a> ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>).</p>
<p style="text-align: justify; "><b><i>Comparative Analysis </i></b></p>
<p style="text-align: justify; ">Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.</p>
<p style="text-align: justify; ">It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/354942/patentsact1977011014.pdf">UK Patent Act, 1977</a> where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20Guidelines%20for%20CRI_Krishna.pdf"> Krishna and Saurastri Associates </a> ).</p>
<p style="text-align: justify; ">Likewise, while comparing the jurisprudence of US, the landmark case <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=175"><i>Diamond vs. Diehr</i></a>, which marked the beginning of software patenting was cited ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Shubhojeet_Comments_CRI%20(1).pdf">Subhojeet Ghosh</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> ). Several others argued that India must align their laws with global standards ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/2013-07-26%20PEIL_comments%20on%20draft%20guidelines%20on%20examination%20of%20computer%20related%20inventions.pdf"> Phillips Intellectual Property and Standards </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments_to_India_Draft_Guidelines_for_Computer_Related_Inventions.pdf"> Sun Smart IP Services </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Guideline1.pdf">United Overseas Patent Firm</a>).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/ComparativeAnalysis.png" alt="Comparative Analysis" class="image-inline" title="Comparative Analysis" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; "><b><i>Business Method</i></b></p>
<p style="text-align: justify; ">The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.</p>
<p style="text-align: justify; ">It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20CRI.pdf">Law Offices of Mohan Associates</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">, Remfry and Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/COMMENTS.pdf">D. Moses Jeyakaran</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20thappeta%20Jul%2026%202013%20comments%20on%20CRI%20Examination.pdf"> Law Firm of Naren Thappeta </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> ).</p>
<p style="text-align: justify; "><b><i>Critique of Examples and Flowcharts </i></b></p>
<p style="text-align: justify; ">The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL_I-HIPP_submission_on_CRI_Guidelines.pdf"> In-House Intellectual Property Professional Forum, </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/O&A-Comments%20on%20Guidelines%20for%20CRI.pdf">, Obhan & Associates</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">Remfry & Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/TCS%20Response%20to%20Draft%20CRI%20Guidelines.pdf">Tata Consultancy Services</a> ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ), and some of them are "weak, obscure and incorrect" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a>). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/PositionofStakeholdersIllustrations.png" alt="Position of Stakeholders' Illustrations" class="image-inline" title="Position of Stakeholders' Illustrations" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> V. </b> <b>Conclusion </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.</p>
<p style="text-align: justify; ">The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.</p>
<p style="text-align: justify; ">Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions'>http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions</a>
</p>
No publishernehaaFeaturedHomepageSoftware PatentsAccess to Knowledge2015-01-05T17:01:50ZBlog EntryGuidelines for Examination of Computer Related Inventions in abeyance
http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance
<b>The CRI Guidelines were heavily criticised for their failure to address the ambiguities created by Section 3(k) and for expanding the scope of software patent eligibile subject-matter, inter alia.
Following several representations and submissions by interested stakeholders, the Controller General has moved the Guidelines into abeyance, until discussions with stakeholders are complete and contentious issues are resolved, and is a welcome step.
</b>
<p> </p>
<p>CIS has consistently made submissions
to the Indian Patent Office on the issue of software patenting( <a class="external-link" href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">2015</a>, <a href="http://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions">2013</a>,
<a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">2010</a>).
The <a href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">latest
submission </a>was made in September 2015, in response to the
<a href="http://www.ipindia.nic.in/iponew/CRI_Guidelines_21August2015.pdf">Guidelines
for Examination of Computer Related Inventions, 2015</a>(“CRI Guidelines/ Guidelines”)
in which we highlighted several concerns and presented solutions, and
also proposed a definition of "computer programme per se".</p>
<p>In view of the representations made to
the Patent Office, on 14th December 2015, the Controller General
issued an order to keep the Guidelines in abeyance. <strong>Till the
issues therein are resolved, the existing provisions on S. 3(k) of
chapter 08.03.05.10 of the Manual of Patent Practice and Procedure
will continue to be applicable.</strong></p>
<p>The primary fault with the Guidelines
lay in the fact that, legally, its scope of was in excess of section
3(k) of the Indian Patent's Act, 1970 (parent statute). The
Controller General's order acknowledging the representations and
submissions made in response to the Guidelines, and consequently
keeping the Guidelines in abeyance is a welcome step.</p>
<p><strong>You may access the order <a href="http://ipindia.nic.in/officeCircular/officeOrder_14December2015.pdf">here</a>.</strong></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance'>http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance</a>
</p>
No publishersinhaIntellectual Property RightsFOSSSoftware PatentsAccess to Knowledge2015-12-23T10:06:53ZBlog EntryComments on the Guidelines for Examination of Computer Related Inventions (CRIs)
http://editors.cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris
<b>Recently, the Indian Patents Office released the Guidelines for Examination of Computer Related Inventions (“2015 Guidelines/ Guidelines”) in an attempt to clarify examination of software related patents in India. This post is a pure analysis of the 2015 Guidelines. The new Guidelines, essentially, narrow the exclusions of secttion 3(k), thereby enlarging the scope of software related applications eligible for a patent grant. More alarmingly, there is low emphasis on the application of the subject matter test, increased ambiguity on the nature of subject matter and an exclusionary list of examples appended to the document. In the following post, CIS highlights these concerns and presents solutions, and also proposes a definition of "computer programme per se".
Read on to understand how the new guidelines will potentially lead to an increase in software patenting activity by expanding the scope of patentable subject matter – in negation of the legislative intent of section 3(k) of the Indian Patents Act, 1970.</b>
<p style="text-align: justify;">(Prepared with comments from Pranesh Prakash)</p>
<hr />
<p style="text-align: justify;">The <a class="external-link" href="http://www.ipindia.nic.in/iponew/CRI_Guidelines_21August2015.pdf">2015 Guidelines</a> were stuck in the pipeline for a long time. The first draft was released in 2013 and a round of public consultation later, it paved the way for the current guidelines. The guidelines exist to supplement the practices and procedures followed by the Patent Office (as prescribed in the Indian 'Manual of Patent Office Practice and Procedure')<a name="_ftnref1" href="#_ftn1">[1]</a>, with the specific objective of ensuring consistent and uniform examination of CRI applications.</p>
<p style="text-align: justify;">To begin with, the Guidelines have been significantly trimmed down from their draft version. CIS had <a href="http://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions">commented on the Draft Guidelines in 2013</a> and broadly observed/recommended the following:</p>
<ul style="text-align: justify;">
<li>That the explanation to section 3(k) (Para 2.4) include the subject matter test.</li>
<li>That the Guidelines clarify that section 3(k) intending to exclude “<em>computer programs per se</em>” means excluding computer programs <strong>by themselves</strong>.</li>
<li>Supplying clarifications to the meaning of Inventive Step </li></ul>
<p style="text-align: justify;"> Para 5.3 stated: <em>(ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;</em></p>
<em> </em>
<p>Ambiguity around the terms “technical advance” and “person skilled in the art” persists.</p>
<p> </p>
<ul style="text-align: justify;">
<li>The Guidelines place CRIs in the same pool as other inventions, to the extent of suggesting that CRIs be evaluated on same standards of novelty, non-obviousness and industrial applicability as other inventions. This is problematic, because CRIs are inventions with features such as obsolence and being largely incremental innovations.</li>
<li>That the guidelines prescribing dictionary meanings for undefined terms (in Indian statutes) – was a dangerous prescription to make because the words “firmware”, “software”, “hardware” and “algorithm” have different meanings in different contexts.</li>
<li>That the guidelines had a misguided sense of ordering the paragraphs. The subject matter test (which should be undertaken first) was mentioned after the narrower test for <em>computer programs per se. </em>To ensure correct examination re CRIs the application of the subject matter test should precede all other patent criterion evaluations.<a name="_ftnref2" href="#_ftn2">[2]</a></li></ul>
<p style="text-align: justify;">All the above observations/recommendations still hold true – unfortunately, none of them have been incorporated into the 2015 Guidelines. The few <em>unwanted</em> changes that eventually made their way have nullified the progress the 2013 draft made in terms of providing clarity to section 3(k) and narrowing down the scope of software patents. For instance-</p>
<ul style="text-align: justify;">
<li>Instead of supplying clarity to terms such as “technical effect”, “technical advancement”, the 2015 Guidelines removethe definition of these terms. However, section 6 lists six questions that must be addressed by the examiner to determine the technical advancement of the invention.</li>
<li>Similarly, the explanation to section 3(k) has been deleted in the 2015 text.</li>
<li>The explanation to “inventive step” made reference to the <em>Enercon case</em> (thereby <em>Windsurfing International Inc.</em> and <em>Pozzoli case)</em>, for the determination of inventive step. The explanation has also been discarded in the 2015 Guidelines.</li>
<li>Other changes include providing better definition of Algorithms, making thescope of mathematical model and business method claims under section 3(k) more expansive.</li></ul>
<h2 style="text-align: justify;">Narrowing down excluded subject matter relating to CRIs</h2>
<p style="text-align: justify;">Under the crucial section “<strong>Determination of excluded subject matter relating to CRIs</strong>” (section 5.4 in the draft Guidelines; section 4.5 in 2015 Guidelines), the 2013 draft deemed inventions consisting of computer programmes combined with general purpose computers as non-patentable. However, a computer programme couple with novel hardware was deemed possibly patentable subject matter. That version stated <em>“5.4.6....In cases where the novelty resides in the device, machine or apparatus and if such devices are claimed in combination with the novel or known computer programmes to make their functionality definitive, the claims to these devices may be considered patentable, if the invention has passed the triple test of novelty, inventive step and industrial applicability. ” </em>In the 2015 Guidelines, however, section 4.5 does not shed substantive light on the matter of patentability of software combined with novel hardware. Instead a new section titled “Determinants” has been introduced:</p>
<p style="text-align: justify;"><strong><em>5. Determinants</em></strong></p>
<p style="text-align: justify;"><em> 5.1 For being considered patentable, the subject matter should involve either</em></p>
<p style="text-align: justify;"><em> - a novel hardware, or</em></p>
<p style="text-align: justify;"><em> -a novel hardware with a novel computer programme, or</em></p>
<p style="text-align: justify;"><em> -a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.</em></p>
<p style="text-align: justify;"><em> A computer program, when running on or loaded into a computer, going beyond the “normal” physical interactions between the software and the hardware on which it is run, and is capable of bringing further technical effect may not be considered as exclusion under these provisions.</em></p>
<p style="text-align: justify;">And,</p>
<p style="text-align: justify;"><strong> </strong></p>
<p style="text-align: justify;"><strong><em> 6. Indicators to determine technical advancement</em></strong></p>
<p style="text-align: justify;"><em>6.1 While examining CRI applications, the examiner shall confirm that the claims have the requisite technical advancement. The following questions should be addressed by the examiner while determining the technical advancement of the inventions concerning CRIs:</em></p>
<p style="text-align: justify;"><em> (i) whether the claimed technical feature has a technical contribution on a process which is carried on outside the computer;</em></p>
<p style="text-align: justify;"><em> (ii) whether the claimed technical feature operates at the level of the architecture of the computer;</em></p>
<p style="text-align: justify;"><em> (iii) whether the technical contribution is by way of change in the hardware or the functionality of hardware.</em></p>
<p style="text-align: justify;"><em> (iv) whether the claimed technical contribution results in the computer being</em></p>
<p style="text-align: justify;"><em> made to operate in a new way;</em></p>
<p style="text-align: justify;"><em> (v) in case of a computer programme linked with hardware, whether the programme makes the computer a better computer in the sense of running more efficiently and effectively as a computer;</em></p>
<p style="text-align: justify;"><em> (vi) whether the change in the hardware or the functionality of hardware amounts to technical advancement.</em></p>
<p style="text-align: justify;"><em> If answer to ANY of the above questions is in affirmative, the invention may not be considered as exclusion under section 3 (k) of the Patents Act, 1970.</em></p>
<p style="text-align: justify;">It is evident from section 5 that the Patent Office intends to expand the scope of patentable subject matter, and narrow down applicability of section 3(k). The clause “<em>a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.” </em>contributes to the expansion. There is no definition as to what will constitute<em>“...normal interaction with such hardware...” </em>Neither do the Guidelines set a standard for assessment of “normal interaction.” Should “normal interaction” be determined from the definition/perspective supplied by the vendor, or from the known universe of interactions possible from that device?</p>
<p style="text-align: justify;">Further, as a stakeholder (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf">Anand and Anand</a>) in their <a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions">comments on the 2013 draft</a> pointed out, increasing the threshold to a novel hardware (and not just a general purpose computing machine) would go against the legislative intent as the requirement of a novel hardware was not mentioned anywhere in the Act.</p>
<p style="text-align: justify;">These gaps may pave the path for a rather broad scope of patentable software inventions.</p>
<h2 style="text-align: justify;">Secondary application of the subject matter test</h2>
<p style="text-align: justify;"><em>“...Therefore, if a computer programme is not claimed by “in itself” rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfills all other criterion of patentability, the patent should not be denied. In such a scenario, the claims in question shall have to be considered taking in to account whole of the claims. ”</em></p>
<p style="text-align: justify;">The way 3(k) functions is that it's a subject matter test for what an invention is (with non-inventions excluded, since an application that has not been found to be in order may not be granted a patent <br /> under s.43, and to be 'in order', the application has to be "for an invention" (s.6, s.10, etc.)). The tests for novelty, inventive step, and industrial applicability have to in any case be applied, regardless of the subject matter test. So what the above-quoted sentence does is removes the subject matter test, as it uses "in itself" to mean to the exclusion of patentability tests other than subject matter.</p>
<h2 style="text-align: justify;">Proposed definition of “computer programme per se”</h2>
<p style="text-align: justify;">Further, CIS suggests a definition to "computer programme per se":</p>
<p style="text-align: justify;"><em>"Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium." </em><br /> <br /> Furthermore, since the inclusion of computer programmes in a broader application should not render the application ineligible subject matter, CIS previously proposed an addition to the test:</p>
<p style="text-align: justify;"><em>"We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme </em>per se<em>." </em></p>
<h2 style="text-align: justify;">Issues with illustrative examples</h2>
<p style="text-align: justify;">CIS observes that most of the examples provided in the document are things that should <strong>*not*</strong> be awarded patents as per section 3(k). <br /> <br /> 8.2 describes a computer programme per se, and awarding a patent to this would (additionally has no novelty, no inventive step) <br /> 8.4 describes a computer programme per se. General Purpose Computer. (additionally has no novelty, no inventive step) <br /> 8.5 describes a computer programme per se. The "repeaters", etc., are software. General Purpose Computer. (additionally has no novelty, no inventive step) <br /> 8.6 describes a computer programme per se. (additionally has no novelty, no inventive step) <br /> 8.8 describes a computer programme per se. It can be implemented on any general purpose computer. (additionally has no novelty, no inventive step) <br /> 8.1 is a simple algorithm, and forms the basis of parallel processing in a computer, of which a wireless device is a subset. (additionally has no novelty, no inventive step) <br /> 8.1, 8.3, 8.7 have no novelty, no inventive step, despite not being computer programmes per se.</p>
<p style="text-align: justify;">This issue was also raised by stakeholders in their <a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions">comments to the IPO on the 2013 draft. </a></p>
<h2 style="text-align: justify;">Conclusion</h2>
<p style="text-align: justify;">The 2015 Guidelines have narrowed the exclusions in section 3(k) – which does not bode well for innovation, especially innovation by startup enterprises. The new guidelines will permit a larger scope of applications to be granted, which will lead to bigger players in the market amassing huger patent portfolios. There is also an urgent need for clarification on “ novel hardware”.</p>
<p style="text-align: justify;">On a broader level, CIS has <a href="http://cis-india.org/a2k/blogs/arguments-against-software-patents">repeatedly argued for discarding patent protection</a> for software inventions, because of the unique nature of such inventions and the repercussions software patenting has on subsequent innovative activity. The 2015 Guidelines disappoint on rolling back and clarifying software patenting in India.</p>
<hr style="text-align: justify;" />
<p style="text-align: justify;"><a name="_ftn1" href="#_ftnref1">[1]</a>Chapter 08.03.05.10 of the Manual, containing provisions pertaining to section 3(k) of the Patents Act, 1970 shall stand deleted with coming into force of these Guidelines for examination of CRIs.</p>
<p style="text-align: justify;"><a name="_ftn2" href="#_ftnref2">[2]</a>The flow chart in the 2013 draft guidelines show a step by step process of examining CRIs. However, the subject matter determination is done towards the end. There is debate on whether there should be a set order for examining patents. However, in the case of CRIs there must be an exception as the statute explicitly prohibits certain types of patents (business method, algorithm etc). As argued earlier, in order to reduce transaction costs, the subject matter test must be made at the very beginning. There should at least be a preliminary determination as to Section 3(k) to reject patent applications for those inventions that can easily be classified under this provision.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris'>http://editors.cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris</a>
</p>
No publishersinhaSoftware PatentsAccess to KnowledgeIntellectual Property RightsIndian Patents Act Section 3(k)Patents2015-10-27T14:46:24ZBlog EntryCIS Submission on Draft Patent Manual 2010
http://editors.cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010
<b>The patent office has released a revised version of the Draft Manual of Patent Practice and Procedure. Section 8.03.06.10 of the Manual deals with patenting of computer programmes. CIS is happy to note the many improvements in this draft of the Manual from the previous version. CIS made its submission along with a few suggestions that it thinks would make the document even better.</b>
<p>The section has been entirely reformulated and a few of the changes made to the previous version are welcome.</p>
<h3>Positive changes in the Manual</h3>
<ul>
<li>The provisions relating to making software with “technological features” and “technical applications” which were present in the previous version have been completely eliminated. Thus, the “technical applications”of a computer programme will not make an otherwise unpatentable computer programme patentable subject matter. This also eliminates the need to arrive at a definition of “technical applications” or “technological features”. </li>
<li>The term “computer implemented inventions” which found no place in the Patent Act, 1970 but was introduced in the previous version of the manual without proper explanation or definition has been eliminated.</li>
<li>The Manual expressly states that mathematical methods (8.03.06.10.b) and business methods (8.03.06.10.c) are not patentable irrespective of the language in which they claims are couched or the form in which they are claimed.</li>
<li>Computer programme products which were considered to be patentable subject matter in the previous version of the manual are considered to be unpatentable subject matter in the new version. The Manual clearly explains computer programme products to be nothing but computer programme per se stored in a computer readable medium. (8.03.06.10.d)</li>
<li>The Manual recognises that no computer programme can be functional without hardware to execute the programme. This means that any computer programme cannot become patentable subject matter merely because it is associated with some hardware. (8.03.06.10.g)</li>
<li>A computer programme which runs on a general purpose known computer is expressly held to be unpatentable subject matter. This is undoubtedly a welcome inclusion since it helps eliminate claims relating to a mere computer programme which may have been considered patentable simply because such computer programme is run using a general purpose computer. This is one of the common ways in which Section 3(k) is circumvented to obtain patent for claims which are for a computer programme per se.</li>
</ul>
<p>Contentious provisions of the Manual which require amendment/explanation are as follows:</p>
<ul>
<li><b>Clause 8.03.06.10.a</b></li>
</ul>
<p><i>Under this provision, mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions. In relation to computer programs, the law provides a qualification that what is not patentable is only computer program per se.</i></p>
<p>While this restates the statute correctly, it does so without offering any explanation, which would be preferable. The Manual should explain the scope of the term “per se” and clear the ambiguity surrounding it. The Manual should clearly provide reasons for any computer programme to fall in either category.</p>
<p>We suggest using the following definition of computer programme per se, which has previously been submitted to the Patent Office<b>1</b>:</p>
<p><i>Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer,</i><b>2</b> <i>including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium</i>.<b>3</b></p>
<ul>
<li><b>Clause 8.03.06.10.e</b></li>
</ul>
<p><i>If a claim in a patent application is not directed at a computer programme per se it could be patentable, if all other patentability conditions are met. This provision thus necessitates distinguishing computer programmes per se from other types of inventions that use or implement computer programmes.</i></p>
<p>The clause, while seeking to distinguish computer programmes per se from inventions which use or implement computer programmes, does make clear what “implement computer programmes” means, nor does it clarify what “computer programme per se” is. A relevant suggestion for a definition for “computer programme per se” has been provided above, which would address this problem.</p>
<ul>
<li><b>Clause 8.03.06.10.f</b></li>
</ul>
<p><i>The computer programmes are often claimed in the form of algorithms as method claims or system claims with some ‘means’ indicating the function of flow charts or process steps. The algorithm related claims may be even wider than the computer programme claimed by itself, for a programme represents a particular set, the algorithm expresses the principles .</i></p>
<p>We find that this clause has no relevance to explaining patentability of computer programmes and thus suggest that the same be deleted from the Manual. The Manual should however make it clear that in algorithm-related claims, if the function claimed to be performed by the invention can be done only by means of a computer programme, such claims are not patentable.</p>
<ul>
<li>Clause 8.03.06.10.g</li>
</ul>
<p><i>Essentially, all computer programmes need a combination with some hardware for their functionality. In an application for patent for a new hardware system, the possibility of a computer programme forming part of the claims cannot be ruled out. It has to be carefully considered as to how integrated is the novel hardware with the computer programme. Further, it is also to be considered whether the machine is programme specific or the programme is machine specific. A computer programme which may work on any general purpose known computer does not meet the requirement of patentability.</i></p>
<ol>
<li>With regard to cases of computer programmes being combined with hardware, the Manual seems to suggest that the patentability of the combination is dependent on “how integrated the novel hardware [is] with the computer programme.” This language is very vague and ambiguous. In case of an application for patent for a new hardware system, the Manual should make it clear that such claim is eligible only if the inventive conribution resides entirely in the hardware. The Manual should also require the patent applicant to demonstrate exactly how the inventive step resides in the hardware separable from the computer programme.</li>
<li>We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se.</li>
<li>It is indeed laudable that the Manual makes it clear that a computer programme which may work on any general purpose known computer does not meet the requirement of patentability. This should make it clear that a computer programme cannot be patentable simply because it is executed by a special purpose computer as long as a general purpose computer can also execute the same. We suggest the following definition of a general purpose computer, which has already been proposed to the Patent Office, be used:<b>4</b></li>
</ol>
<p><i>A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art.</i></p>
<ul>
<li><b>Clause 8.03.06.10.h</b></li>
</ul>
<p><i>Method claims, whether independent or dependent, reciting computer programs without process limitations in the form of hardware features are not allowable. For a method reciting computer programme to be patentable, it must clearly recite into it limiting hardware integers that enable the program to function .</i></p>
<p>The Clause dilutes the standard set in the previous clauses. It seems to suggest that any method claim is patentable as long as it is connected to hardware which enable the program to function and define its limitations/scope. This position is untenable since no method claim can be purely a computer programme and use of computer programmes for any specific task would necessarily require hardware to implement the same. Therefore the requirement of hardware limitation to make a computer programme patentable is essentially allowing for any computer programme to be patentable. Not only is such a limitation redundant but it also renders the “per se” requirement in Section 3(k) meaningless. Further, the meaning of the term “hardware integers” in the Clause is unclear. For the purpose of this comment, we assume that it refers to hardware features. The Manual should ensure that the method claim has significant per or post processing activity and is not merely combined with hardware to be patent-eligible. This ensures that any computer programme is not granted patent merely because it has certain trivial pre or post processing activities associated with it.</p>
<ul>
<li><b>Clause 8.03.06.10.i</b></li>
</ul>
<p><i>Claims directed at computer programs coupled to hardware, enabling the hardware to perform a certain function may be allowable, if such an invention meets all other conditions of patentability.</i></p>
<p>The Clause is restating the content of Clause 8.03.06.10.e and our comments on this Clause remain the same as our comments for Clause 8.03.06.10.e.</p>
<ul>
<li><b>Requirement of Disclosure</b></li>
</ul>
<p>We suggest that the Manual require that an application claiming patent for a computer programme (which does not constitute computer programme per se) necessarily disclose the entire source code. This ensures that the invention can perform exactly all those functions that are described in the patent application. Since different computer programmes can be written (with each having different source code) to perform the same function, it is of utmost importance that the applicant demonstrate the workability of the invention described in the application and such proof can be provided only by disclosing the source code.</p>
<ul>
<li><b>Purpose of the Manual</b></li>
</ul>
<p>There is no clarity on the purpose and authority of the Manual. We do not know if the Manual attempts to explain the provisions of the Patent Act, 1970 to an applicant or is meant to provide guidance to patent examiners or be binding upon them. If a patent official acts in a manner contradictory to the Manual, the consequences of such action is unclear. The Manual should clarify these questions.<br /><br /></p>
<ol>
<li>
<p class="discreet">This definition was formulated and submitted by Knowledge Commons, Delhi to the Indian Patent Office in response to the earlier version of the draft manual. The definition was formulated through the collective efforts of Prabir Purkayastha, Richard Fontana of Red Hat, Venkatesh Hariharan, Tahir Amin, Mishi Chowdhury of Software Freedom Law Centre and Jaijit Bhattacharya. See http://osindia.blogspot.com/2009/04/computer-programme-per-se-conundrum.html</p>
</li>
<li>
<p class="discreet">We propose the following definition of a general purpose computer - A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art. See also Infra n. 3.</p>
</li>
<li>
<p class="discreet">An information storage medium means any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information, other than an information storage medium that itself represents an inventive contribution to the art.</p>
</li>
<li>
<p class="discreet">This definition was formulated and submitted by Knowledge Commons, Delhi to the Indian Patent Office in response to the earlier version of the draft manual. See http://osindia.blogspot.com/2009/04/computer-programme-per-se-conundrum.html</p>
</li>
</ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010'>http://editors.cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010</a>
</p>
No publisherpraneshSoftware PatentsPatents2014-05-29T06:47:32ZBlog EntryArguments Against Software Patents in India
http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents
<b>CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.</b>
<p>This blog post is based on a presentation made at the <a href="http://www.itechlaw-india.com/">iTechLaw conference</a> held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.</p>
<h2>Preamble</h2>
<p>Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: <strong>why should we allow for patenting of software</strong>? Answering this question will lead us to ask: <strong>who benefits from patenting of software</strong>. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.</p>
<h2>What are Patents?</h2>
<p>Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.</p>
<h2>Philosophical Justification Against Software Patents</h2>
<p>Even without going into the case against patents <em>per se</em> (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like <a href="http://www.researchoninnovation.org/">Bessen & Meurer</a> (especially in their book <a href="http://researchoninnovation.org/dopatentswork/">Patent Failure</a>) and <a href="http://www.againstmonopoly.org/">Boldrin & Levine</a> (in their book <a href="http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm">Against Intellectual Monopoly</a>, the full text of which is available online).</p>
<p>But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely <a href="http://en.wikipedia.org/wiki/Algorithm">algorithms</a> ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.</p>
<p>Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.</p>
<h2>Legal Case Against Software Patents</h2>
<p>In India, section 3(k) of the Patent Act reads:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (<em>sic</em>) <em>per se</em> or algorithms.</p>
</blockquote>
<p>As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).</p>
<p>Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme <em>per se</em>" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how <em>per se</em> should be understood. While understanding what <em>per se</em> means might be a difficult job, it is much easier to see what it does <em>not</em> mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a computer programme <em>per se</em> other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.</p>
</blockquote>
<p>Thus, it is clear that the interpretation that "computer programme <em>per se</em>" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.</p>
<p>Indeed, what exactly is "technical application to industry"? <a href="http://wordnetweb.princeton.edu/perl/webwn?s=technical">"Technical"</a> has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, <a href="http://wordnetweb.princeton.edu/perl/webwn?s=software">by definition</a>, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.</p>
<p>In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were <em>ultra vires</em> the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.</p>
<p>In October 2008, CIS helped organize a <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">National Public Meeting on Software Patents</a> in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for <a href="http://editors.cis-india.org/openness/software-patents/software-patenting-will-harm-industry-consumer">both the industry as well as consumers</a>.</p>
<h2>Practical Reasons Against Software Patents</h2>
<p>This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.</p>
<p>There are traditionally <a href="http://www.patenthawk.com/blog/2005/04/patent_economics_part_4_incent.html">four incentives that the patent system caters to</a>: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.</p>
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<h3>Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation</h3>
<p>Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).</p>
<p>Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous <a href="http://en.wikipedia.org/wiki/LZW">LZW compression method</a>), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.</p>
<p>An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about <a href="http://www.mail-archive.com/whatwg@lists.whatwg.org/msg15476.html">improving Ogg Theora</a> as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just <a href="http://74.125.153.132/search?q=cache:jRnXmHcZCMsJ:www.mpegla.com/Lists/MPEG%2520LA%2520News%2520List/Attachments/140/n_03-11-17_avc.html+http://www.mpegla.com/news/n_03-11-17_avc.html&cd=2&hl=en&ct=clnk&gl=in">the number of companies and organization that hold patents over H.264</a> is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)</p>
<p>Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website <a href="http://webshop.ffii.org">would violate twenty different patents at the very least</a>. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out <a href="http://en.wikipedia.org/wiki/NTP,_Inc.#RIM_patent_infringement_litigation">USD 617 million as settlement</a> to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. <a href="http://copyfight.corante.com/archives/2005/12/15/rimntp_mud_splashes_microsoft.php">Microsoft was also hit by Visto Corporation</a> over those same NTP patents, which had been licensed to Visto (a startup).</p>
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<h4>Don't These Cases Show How Software Patents Help Small Companies?</h4>
<p>The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.</p>
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<p>Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.</p>
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<h3>Term of Patents</h3>
<p>Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.</p>
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<h3>Software Industry Progressed Greatly Without Patents</h3>
<p>In India, software patents have never been asserted in courts (even though many have been <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">illegally granted</a>), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.</p>
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<h3>Copyright Exists for Software</h3>
<p>As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.</p>
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<h3>Insufficient Disclosure</h3>
<p>When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.</p>
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<h3>Software Patents Work Against Free/Libre/Open Source Software</h3>
<p>Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.</p>
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<h2>Conclusion</h2>
<p>Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of <a href="http://en.wikipedia.org/wiki/Bilski_v._Kappos"><em>Bilski v. Kappos</em></a>. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard <em>In re Bilksi</em>) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive <a href="http://endsoftpatents.org/amicus-bilski-2009"><em>amicus curiae</em> brief</a> to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents'>http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents</a>
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No publisherpraneshOpen StandardsAccess to KnowledgeSoftware PatentsIntellectual Property RightsPublicationsPatents2012-03-13T10:43:12ZBlog Entry