Ipr and software

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By

Aadil Currimbhoy

Software Patents in India



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SOFTWARE AND INTELLECTUAL PROPERTY PROTECTION

• Intellectual property protection laws that relate to software have been described as a legal quagmire.

• Section 2(ffc) of Indian Copyright Act 1957 defines ‘computer programme’ as a set of instructions expressed in words codes schemes or in any other form including a machine readable medium capable of causing a computer to perform a particular task or achieve a particular result.

• In simple language, software may be understood to be the non-physical aspect of a computer.

• Software is generally protected by three different forms of intellectual property protection: copyright, patenting, and trade secrets.



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COPYRIGHT AND SOFTWARE

• Traditionally, copyright was what was most commonly employed to protect software.

• In April 1994, TRIPS Agreement ratified that computer programmes should be protected as literary works under of the Berne Convention.

• Copyright protects the literary aspect of software and is essential in the efforts against piracy in the industry.

• In India, what evidence we have to look at shows that the ‘look and feel’ test foremost is most employed and has been employed in a number of cases including R.G Anand v. M/S. Delux Films.



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Apple Computer, Inc. vs. Microsoft Corporation

• Apple Computer, Inc. (now Apple Inc.) sought to prevent Microsoft and Hewlett-Packard from using visual graphical user interface (GUI) elements that were similar to those in Apple's Lisa and Macintosh operating systems.

• The court ruled that, "Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]...".

• This case quite clearly brings out the essential flaw in protection though copyright.



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PATENTS AND SOFTWARE

• Considering the industry’s phenomenal growth into $407.3 billion industry in 2013, it is only natural that innovators in the software industry desired protection beyond copyright.

• Patenting mends the chink in the copyright armor: protection of the idea.

• A good example to illustrate the broader, more comprehensive degree of protection offered by patents is Amazon’s controversial 1-Click buy patent.

• Another good illustration is the outcome of the Apple v. Samsung case when compared to Apple v. Microsoft.



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Apple Inc. v. Samsung Electronics Co.

• Apple accused Samsung of infringing on three utility patents and four design patents.

• At the heart of the dispute is Design Patent 504,889. The patent consists of a one-sentence claim about the ornamental design of an electronic device, accompanied by nine figures depicting a thin rectangular cuboid with rounded corners.

• Apple succeeded to a large degree against Samsung in the United States; where Apple v. Microsoft was heard.

• The higher degree of patent protection is quite well depicted in this case as elements which seemed less significant than those argued in Apple v. Microsoft were ruled in Apple’s favour.



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PATENT PROTECTION IN INDIA

• Patent protection of software in India is commonly discussed to be too narrow and offering too little scope for software protection.

• Patents are a rarity. However, the commonly made statement that they are not permitted by law, however, is a fallacy.

• Upon reading the disqualification clause i.e., section 3(k) of the Indian Patents Act, 1970, the disqualification phrase reads ‘computer programme per se’: a conditional disqualification rather than an absolute one.



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HISTORY OF SECTION 3(k)

• After the 2002 Amendment to the Indian Patents Act, section 3(k) was inserted to exclude software from the definition of ‘invention’.

• Section 3(k) of the Indian Patent Act, 1970 reads:

“a mathematical or business method or a computer programme per se or algorithms”

• The Joint Committee Report provided reasoning behind the ‘per se’ appendage: “This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent”.

• A 2004 ordinance divided section 3(k) into section 3(k) and section 3(ka) but it was later rejected by parliament.



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AN ANALYSIS

• In a patent application filed by Qualcomm Inc. titled “Reverse Link Power Control for an OFDMA System” was rejected by the Mumbai Patent Office.

• Stated that the claims were – mere software implementations;

– merely computer programmes per se,

– for being related to mere scheme as no hardware component defined to carry out the claimed method steps.

• However, in a similar claim made by Qualcomm titled “A Method for Encoding Video Data and Audio Data by an Encoder Device” was granted.



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• The rejection of the 2004 ordinance – The 2004 ordinance divided section 3(k) into

section 3(k) and section 3(ka).

– Section 3(k) was worded as follows:“a computer programme per se other than its technical application to industry or a combination with hardware.”

– Rejection of the ordinance indicates the legislature’s dissent thereof. It can be understood that the intention of the legislature is not that ‘computer programmes per se’ merely indicates computer programmes without technical application to industry or without essential hardware.

WHAT SOFTWARE TRANSCENDS THE ‘PER SE’ BARRIER?



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• The Draft Manual of Patent Practice and Procedure– The crux of the guidelines was that: first, an invention must

be examined as to whether they are mathematical methods, business methods or algorithms as defined in the manual, and disqualified if they are. Then it must be tested if it is a ‘computer programme per se’ as defined below.

– “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…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”



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• Draft Guidelines for Examination of Computer Related Inventions– Does not clarify, in their definition clause, what qualifies

as computer programmes ‘per se’. It merely states that the Oxford Advanced Learners Dictionary defines “per se” as: “‘by itself’ - to show that you are referring to something on its own, rather than in connection with other things”.

– The manual also makes an effort to provide a definition for the ‘technical effect’ but fails to mention its importance.

– Only provides negative illustrations showing what is not an invention, not what is.

– Not legally binding



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THE MISGIVINGS OF PATENTING SOFTWARE

• The software industry, particularly in the United States, but not exclusively, seems to be plagued with patents that are too wide in their scope.– Apple’s patent titled ‘Method for providing human

input to a computer’: Seems to cover everything from multi-touch input to optical input.

– Amazon titled ‘Method and system for placing a purchase order via a communications network’: One click buy patent.

• The number of software patents and the wide scope thereof pose threats to innovation.– Fear of infringing a patent that is broad enough to

encompass their innovation.



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• Widely believed to promote patent trolls and wasteful patent infringement suits between the leaders in the industry. – Rotatable Technologies

• Development in software is sequential i.e., one invention forms a base for another.



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THE IMPACT OF FOREIGN PATENT APPROACHES

• Countries with a more liberal approach to patents could restrict entry of companies from countries with more restrictive approaches.

• To illustrate, if a software technology is developed and manufactured in India, and a patent was not allowed to be filed, a competitive company in, for example, the United States could file a patent and then demand royalty if the Indian company decides to proceed with sales in the United States.



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CONCLUSION

• Lack of a definite position leaves open the opportunity to establish a position that is educated from the flaws of other systems.

• Liberal as well as a restrictive approach to software patents seem to have their own share of disadvantages.

• However, the present situation of uncertainty leaves the system open to the negative effects of both options and more.

• Software companies of the world pursue applications through priority while the domestic industry lives in the false perception of the illegality of software patenting in the country.



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• Confining software to the realm of copyright, however, is misled.

• While writing literature may be compared to composing a melody or producing artwork; writing code is closer to assembling a virtual machine that performs actions.

• Software must be understood to be virtual machinery and hence viable inventions.



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• Software patents must be granted in a manner that confines the patent to its invention and due importance must be given to the basic requirements of patenting: practical utility, novelty, and non-obviousness.

Ipr and software

Law

Transcript of Ipr and software