Software patents:  Mother of all battles
By Prashant Reddy T

There seems to be another ‘mother of all battles’ brewing between the Open Source Community and the software biggies like Microsoft over the question of software patents. Interestingly this time around we have Indian companies like Infosys and Tata Consultancy Services (TCS) supporting Microsoft’s demand to allow for software patents. The spark for this latest round was the Draft Manual released by the Indian Patent Office which provides for a certain class of software patents.

Considering that there is an open meeting at the Mumbai Patent Office on the 7th of August, on the content of the Draft Manual, both sides have been arguing their case in the media.

Originally in 2002 the Indian Parliament while expanding the scope of the non-patentable subject matter in the Patent Act had inserted Section 3(k) into the Act to read as follows: a mathematical or a business method or a computer programme per se or algorithms (shall not be patentable). This 2002 amendment was a major victory for the Open Source community whose efforts and sharing and collaborating in software development would have been severely challenged by the introduction of software patents in India. However the insertion of the words per se meant that although a computer programme in itself would not be patentable, it may be patentable if it was embedded in a machine.

In 2004 the Ordinance to amend the Patent Act contained an amended Section 3(k) which sought to clarify the above confusion stemming from the words per se. The amended Section 3(k) read as follows: a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithm (shall not be patentable). This basically meant that a certain class of software patents would be allowable. This amendment was heavily criticized by the Open Source Community and soon the government had to drop it even before introducing it in Parliament because of the demands of the Left Parties. However the story doesn’t end there.

Earlier this year the Patent Office had released a Draft Manual of the Patent Office, outlining the Patent Office’s interpretation of the Patent Act. Now although this Manual does not carry the force of law it is indicative of the practices of the Patent Office. The Patent Office has interpreted Section 3(k) to allow for patenting those computer programmes which have a technical effect. This meant that software which was used to control machines or basically any software which had a technical effect would be patentable. This approach is followed even by the E.U. The U.S.A. on the other hand allows for a much wider class of software patents i.e. it allows even for software patents which are merely implementing business methods.

So the question that now begs to be answered is what is the opposition to software patents?

Traditionally computer programmes have been protected by the Copyright Act i.e. computer programmes have been considered literary works. The level of protection under copyright law is significantly lower than the Patent Act since a mere tweaking of the computer programme may not classify as copyright infringement but would surely classify as patent infringement. However the question of whether certain intellectual property deserves to be protected by copyrights or patents depends on the nature of that intellectual property. The Open Source community argues that software for its part is a type of technology which will evolve better under a copyright regime than patent regime since a patenting regime opens the doors to a significant threat of lawsuits. Given the high costs of securing a patent it is feared that only big corporations will be able to secure patents and then use those patents to sue any independent developers who may have developed original software in good faith. Apart from this the Open Source Community argues, and very correctly, that the process of granting software patents would be too complicated therefore escalating the costs of patenting. For e.g. Before a patent is granted the patent office has to carry out a search to ensure that the invention does not exist already and that it is not infringing on any existing patent. How do you do this when a software programme involves billions of lines of code? Another question therefore is whether or not the Patent Office has the capacity to grant such patents?

The corporations on the other hand argue that patenting provides the greatest incentive to innovate and to allow software patents would ensure greater strides in software development.

However as already noted above the nature of IP protection given to a certain sphere of technology depends on the nature of that technology. Given the fact that in India the software industry has been booming under a copyright regime itself there seems no reason to provide greater incentives in the form of a patent regime.

On a separate note it is pertinent to point out that the major software companies like Sun and IBM have been releasing thousands of software patents back into the Open Source Community for further development. Microsoft on the other hand is simply being Microsoft and actively lobbying for the grant of software patents worldwide!

(Prashant Reddy T. has earlier written about the same topic in Spicyipindia.blogspot.com)