An Overview of Software Patenting

INTRODUCTIONDuration of protection
The concept of "intellectual property" in India overThe TRIPS agreement mandates a period of at least
the last few years has taken on some epic20 years for a product patent and 15 years in the
proportions for a number of reasons. One of thecase of a process patent.
primary reasons, attributable to the growingFor Copyright, the agreement prescribes a minimum
awareness among the urban Indian population, is ofperiod of the lifetime of the author plus seventy
the significance and, more importantly, theyears.
commercial benefits in protecting its intellectualJURISDICTIONS OF SOFTWARE PATENTING
property rights both within and outside India. AndSubstantive law regarding the patentability of
under traditional principles of intellectual propertysoftware and computer-implemented inventions, and
protection, patent law is to encourage scientificcase law interpreting the legal provisions, are
research, new technology and industrial progress. Thedifferent under different jurisdictions.
fundamental principle of patent law is that the patentSoftware patents under multilateral treaties:o
is granted only for an invention i.e. new and usefulSoftware patents under TRIPs Agreemento
the said invention must have novelty and utility. TheSoftware patents under the European Patent
grant of patent thus becomes of industrial propertyConventiono Computer programs and the Patent
and also called an intellectual property. And theCooperation Treaty
computer software is a relatively new recipient ofSoftware patenting under TRIPs Agreement
patent protection.The WTO's Agreement on Trade-Related Aspects
The term "Patent'' has its origin from the termof Intellectual Property Rights (TRIPs), particularly
"Letter Patent''. This expression 'Letter Patent' meantArticle 27, are subject to debate on the international
open letter and were instruments under the Greatlegal framework for the patentability of software,
Seal of King of England addressed by the Crown toand on whether software and computer-implemented
all the subjects at large in which the Crown conferredinventions should be considered as a field of
certain rights and privileges on one or more individualstechnology.
in the kingdom. It was in the later part of the 19thAccording to Art. 27 of TRIPS Agreement, patents
century new inventions in the field of art, process,shall be available for any inventions, whether products
method or manner of manufacture, machinery andor processes, in all fields of technology, provided that
other substances produced by manufacturers werethey are new, involve an inventive step and are
on increased and the inventors became very muchcapable of industrial application. (...) patents shall be
interested that the inventions done by them shouldavailable and patent rights enjoyable without
not be infringed by any one else by copying them ordiscrimination as to the place of invention, the field of
by adopting the methods used by them. To save thetechnology and whether products are imported or
interests of inventors, the then British rulers enactedlocally produced."
the Indian Patents and Design Act, 1911.However, there have been no dispute settlement
With respect to patentability of software -relatedprocedures regarding software patents. Its relevance
inventions, it is currently one of the most heatedfor patentability in the computer-implemented
areas of debate. Software has become patentable inbusiness methods, and software information
recent years in most jurisdictions (although withtechnology remains uncertain, since the TRIPs
restrictions in certain countries, notably thoseagreement is subject to interpretation.
signatories of the European Patent Convention orSoftware patents under the European Patent
EPC) and the number of software patents has risenConvention
rapidly.Within European Union member states, the EPO and
MEANING OF SOFTWARE PATENTINGother national patent offices have issued many
The term "software" does not have a precisepatents for inventions involving software since the
definition and even the software industries fails toEuropean Patent Convention (EPC) came into force in
give an specific definition. But it is basically used tothe late 1970s. Article 52 EPC excludes "programs for
describe all of the different types of computercomputers" from patentability (Art. 52(2)) to the
programs. Computer programs are basically dividedextent that a patent application relates to a
into "application programs" and "operating systemcomputer program "as such" (Art. 52(3)). This has
programs". Application programs are designed to dobeen interpreted to mean that any invention which
specific tasks to be executed through the computermakes a non-obvious "technical contribution" or solves
and the operating system programs are used toa "technical problem" in a non-obvious way is
manage the internal functions of the computer topatentable even if a computer program is used in the
facilitate use of application program.invention.
Though the term 'Software patent' does not have aComputer-implemented inventions which only solve a
universally accepted definition. One definitionbusiness problem using a computer, rather than a
suggested by the Foundation for a Free Informationtechnical problem, are considered unpatentable as
Infrastructure is that a software patent is a "patentlacking an inventive step. Nevertheless, the fact that
on any performance of a computer realized byan invention is useful in business does not mean it is
means of a computer program".not patentable if it also solves a technical problem.
According to Richard Stallman, the co-developer ofComputer programs and the Patent Cooperation
the GNU-Linux operating system and proponent ofTreaty
Free Software says, "Software patents are patentsThe Patent Cooperation Treaty (PCT) is an
which cover software ideas, ideas which you wouldinternational patent law treaty, which provides a
use in developing software.unified procedure for filing patent applications to
That is Software patents refer to patents that couldprotect inventions. A patent application filed under the
be granted on products or processes (includingPCT is called an international application or PCT
methods) which include or may include software as aapplication. Under the PCT, the international search
significant or at least necessary part of theirand the preliminary examination are conducted by
implementation, i.e. the form in which they are put inInternational Searching Authorities (ISA) and
practice (or used) to produce the effect they intendInternational Preliminary Examining Authority (IPEA).
to provide.CURRENT TREND
Early example of a software patent:However, before we start hailing the advent of a
On 21st Sep 1962, a British patent application entitlednew era and equating the patenting of software in
"A Computer Arranged for the Automatic Solution ofIndia it would be well worth our while to take a
Linear Programming Problems" was filed. Thepause and examine the realities of software
invention was concerned with efficient memorypatenting. We could do this by looking at examples
management for the simplex algorithm, and may beof countries in which software patenting has already
implemented by purely software means. The patentbecome the order of the day, such as in the US and
was granted on August 17, 1966 and seems to beJapan .
one of the first software patents.United States
CONCEPTUAL DIFFERENCE BETWEEN COPYRIGHTThe United States Patent and Trademark Office
AND PATENT(USPTO) has traditionally not considered software to
Software has traditionally been protected underbe patentable because by statute patents can only
copyright law since code fits quite easily into thebe granted to "processes, machines, articles of
description of a literary work. Thus, Software ismanufacture, and compositions of matter". i.e. In
protected as works of literature under the Berneparticular, patents cannot be granted to "scientific
Convention, and any software written is automaticallytruths" or "mathematical expressions" of them. The
covered by copyright. This allows the creator toUSPTO maintained the position that software was in
prevent another entity from copying the programeffect a mathematical algorithm, and therefore not
and there is generally no need to register code inpatentable, into the 1980s. This position of the
order for it to be copyrighted. While SoftwareUSPTO was challenged with a landmark 1981
Patenting has recently emerged (if only in the US,Supreme Court case, Diamond v. Diehr. The case
Japan and Europe) where, Patents give their ownersinvolved a device that used computer software to
the right to prevent others from using a claimedensure the correct timing when heating, or curing,
invention, even if it was independently developed andrubber. Although the software was the integral part
there was no copying involved.of the device, it also had other functions that related
Further, it should be noted that patents cover theto real world manipulation. The court then ruled that
underlying methodologies embodied in a given pieceas a device to mold rubber, it was a patentable
of software. On the other copyright prevents theobject. The court essentially ruled that while
direct copying of software, but do not prevent otheralgorithms themselves could not be patented, devices
authors from writing their own embodiments of thethat utilized them could.
underlying methodologies.But in 1982 the U.S. Congress created a new court i.e
The issues involved in conferring patent rights tothe Federal Circuit to hear patent cases. This court
software are, however, a lot more complex thanallowed patentability of software, to be treated
taking out copyrights on them. Specifically, there areuniformly throughout the US. Due to a few landmark
two challenges that one encounters when dealingcases in this court, by the early 1990s the
with software patents. The first is about thepatentability of software was well established.
instrument of patent itself and whether the mannerMoreover, Several successful litigations show that
of protection it confers is suited to the softwaresoftware patents are now enforceable in the US.
industry. The second is the nature of software, andThat is the reason, Patenting software has become
whether it should be subject to patenting.widespread in the US. As of 2004, approximately
However, issues involved in conferring patent rights145,000 patents had issued in the 22 classes of
to software are a lot more complex than taking outpatents covering computer implemented inventions.
copyrights on them. Specifically, there are twoJapan
challenges that one encounters when dealing withSoftware is directly patentable in Japan. In various
software patents. The first is about the instrumentlitigations in Japan, software patents have been
of patent itself and whether the manner ofsuccessfully enforced. In 2005, for example,
protection it confers is suited to the softwareMatsushita won a court order barring Justsystem
industry. The second is the nature of software andfrom infringing Matsuhita's Japanese patent 2,803,236
whether it should be subject to patenting.a) Differentcovering word processing software.
Subject MattersIndian Position
Copyright protection extends to all original literaryWith respect to computer software, in Patents
works (among them, computer programs), dramatic,(Amendment) Act, 2002, the scope of
musical and artistic works, including films. Undernon-patentable subject matter in the Act was
copyright, protection is given only to the particularamended to include the following: "a mathematical
expression of an idea that was adopted and not themethod or a business method or a computer
idea itself. (For instance, a program to add numbersprogramme per se or algorithms".
written in two different computer languages wouldHowever, the recent amendment changes
count as two different expressions of one idea)(Ordinance, 2004), which amends the Patents Act,
Effectively, independent rendering of a copyrighted1970, has been promulgated after receiving assent
work by a third party would not infringe thefrom the President of India and has came into effect
copyright.from 1st Jan., 2005. Apart from change in
Generally patents are conferred on any 'new' andpharmaceuticals and agro chemicals, one of the
'useful' art, process, method or manner ofseminal amendments this Ordinance seeks to bring is
manufacture, machines, appliances or other articles orto permit the patenting of embedded software.
substances produced by manufacture. Worldwide, theHence, the amendment means that while a
attitude towards patentability of software has beenmathematical or a business method or an algorithm
skeptical.b) Who may claim the right to a patentcannot be patented, a computer programme which
copyright?has a technical application in any industry or which can
Generally, the author of a literary, artistic, musical orbe incorporated in hardware can be patented. Since
dramatic work automatically becomes the owner ofany commercial software has some industry
its copyright.application and all applications can be construed as
The patent, on the other hand is granted to the firsttechnical applications, obviously it opens all software
to apply for it, regardless of who the first to inventpatenting.
it was. Patents cost a lot of money. They cost evenIn any case, any company seeking to file a patent
more paying the lawyers to write the application thanapplication for software under the Ordinance should
they cost to actually apply. It takes typically someensure that its invention firstly, follows the three
years for the application to get considered, evenbasic tests:o Inventive Stepso Noveltyo Usefulness
though patent offices do an extremely sloppy job ofTherefore, it is important that the software sought
considering.c) Rights conferredto be protected is not merely a new version or an
Copyright law gives the owner the exclusive right toimprovement over an existing code.
reproduce the material, issue copies, perform, adaptFurther, in accordance with the specific requirements
and translate the work. However, these rights areof the Ordinance with regard to patentability of
tempered by the rights of fair use which are availablesoftware, the software should necessarily have a
to the public. Under "fair use", certain uses oftechnical application to the industry or be intrinsic to
copyright material would not be infringing, such as useor "embedded" in hardware. This is to prevent against
for academic purposes, news reporting etc. Further,any future litigation or claims of infringements being
independent recreation of a copyrighted work wouldraised, which is a distinct probability even after a
not constitute infringement. Thus if the same piecepatent has been granted.
of code were independently developed by twoCONCLUSION
different companies, neither would have a claimIndia for its part seems to have adopted the more
against the other.conservative approach of the European patenting
A patent confers on the owner an absolutenorms for software. But the Ordinance definitely has
monopoly which is the right to prevent others fromits use and relevance in today's India, particularly for
making, using, offering for sale without his/herour growing domestic semi- conductor industry. This,
consent. In general, patent protection is a faralong with judicial tempering might definitely ensure a
stronger method of protection than copyrightjudicious use of patent protection while allowing the
because the protection extends to the level of theindustry to grow through innovations and inventions,
idea embodied by a software and injuncts ancillarythereby, mitigating the risks of trivial patents
uses of an invention as well. It would weakenchocking the life out of real innovations and
copyright in software that is the base of all Europeaninventions. This is the reason a patent should always
software development, because independentbe treated as a "double edged sword", to be wielded
creations protected by copyright would be attackablewith caution and sensitivity.
by patents. Many patent applications cover very smallNow whether, in reality this will be implemented on a
and specific algorithms or techniques that are used inrigid basis or will become broad in scope through
a wide variety of programs. Frequently theapplication (as in the U.S.), and, more importantly,
"inventions" mentioned in a patent application havewhether the Ordinance would, in fact, result in
been independently formulated and are already in useincreased innovation and inventions in the software
by other programmers when the application is filed.d)industry, remains to be seen.