| The patent application was rejected by the Patent | | | | a strong protection even if its period is short. That |
| and Trademark Office Board of Appeals rejecting the | | | | means, they would like get a protection of the |
| claim for curing synthetic The Court of Customs and | | | | technical application of the software itself, which |
| Patent Appeals reversed the order. The subject | | | | constitutes a functional aspect, an ingredient to get |
| process constituted patentable subject matter that in | | | | patent protection. It seems clear that software |
| several of its steps it included use of a mathematical | | | | patents are actually preventing the adoption of new |
| formula and a programmed digital computer, as | | | | technology rather than encouraging innovation. In |
| process involved transformation of uncured synthetic | | | | India software patents are impossible. The argument |
| rubber into a different state or thing and solved an | | | | advanced against patenting in India is that copyright |
| industry problem of "undercure" and "overcure". The | | | | law can adequately safeguard the interests of |
| claim satisfies one of the tests to prove | | | | authors and as such no patenting would be |
| non-obviousness which was enumerated in the case | | | | necessary and patenting would hinder innovation and |
| of Biogen v. Medeva, in which a problem in rubber | | | | development of new technology, which can act as a |
| industry of overcuring or undercuring was resolved, | | | | launch pad to propel the economy. |
| by ensuring the time of curing the rubber with the | | | | The recent developments regarding the grant of |
| help of the new device included in several of its | | | | software patenting in USA and in other parts of the |
| steps use of a mathematical formula and a | | | | world is that it has become a serious threat to the |
| programmed digital computer. The computer | | | | Open Source Licensing. There is tremendous |
| programmes can be categorised as a kind of | | | | animosity in the free software community towards |
| algorithms or mathematical formula. In United States | | | | software patents. Today, even companies such as |
| of America mathematical programmes, algorithms and | | | | IBM, Sun, Texas Instruments, and CISCO have joined |
| scientific truths are outside the purview of patent | | | | the growing Free and Open Source Software (FOSS) |
| protection. But the court held that the mere | | | | community opposing software patents. Most of |
| presence of a software element did not make an | | | | these companies have publicly stated that they are |
| otherwise patent-eligible machine or process | | | | filing patents only for defensive purposes. Indian law |
| un-patentable. The United States Supreme Court | | | | also bars software patents. With regards to |
| came with a remarkable judgment by giving a new | | | | proprietary versus FOSS, India needs to analyse and |
| interpretation for the protection of software. We can | | | | define what should be its trajectory. There is enough |
| say that, it was the beginning of software patenting | | | | grounds to believe that if Indian companies want to |
| in United States. It distinguishes the computer | | | | move from services model to a product model, |
| programmes as computer programmes per se and | | | | software patents and proprietary software will not |
| computer programmes which are used for the | | | | be the route to take instead, India should promote |
| industrial application of a device. The significance of | | | | FOSS, as Brazil and China are doing. Much of this has |
| practical application of software in the business and | | | | been caused by free software or open source |
| technology was recognised and appreciated at the | | | | projects shutting down when the holders of patents |
| infancy of software industry itself. | | | | covering aspects of a project demanded license fees |
| In India by The Patents Act 1970 as Amended by | | | | that the project could not or was not willing to pay |
| (Amendment) Act, 2002 radically changed the | | | | or offered licenses under terms which the project |
| definition of "invention" and also excluded "a | | | | was unwilling to accept, or could not accept because |
| mathematical method or a business method or a | | | | it conflicted with the free software license in use. |
| computer programme per se or algorithms" from | | | | The meaning of patents itself is the disclosure of |
| patentability. The Indian legislature appears to have | | | | invention by the inventor to the society or state and |
| tacitly approved the formulation in this case by | | | | state will grant a temporary monopoly to the |
| importing the wording. It was generally understood | | | | inventor. Grant of patent is an incentive to innovation. |
| that a product embedded with a computer | | | | So in my view, since software creation comes within |
| programme producing a 'technical effect' and having | | | | the definition of "invention", it is proper to give |
| an inventive step is patentable. In India computer | | | | protection of software under patents rather than by |
| programmes per se are protected under The | | | | giving protection under copyright law. Software is not |
| Copyright Act, 1957 as a literary work. It protects | | | | merely a language containing source code and object |
| only the language of the computer programme i.e. | | | | code. It has a function and it is an application which |
| object code and source code, but not its technical | | | | satisfies the criteria of "inventive step" for patents |
| application. The software manufacturing companies | | | | protection. In my opinion, equipping software with |
| will get a long term protection under copyright law. | | | | copyright protection in fact degrades the significance |
| They do not want a long term protection, but want | | | | of soft ware inventors. |