The Business Standard recently carried a story on software patents or to be more specific the response by some companies to the question of software patents as deal with by the Patent Office’s Draft Manual on Patent Practice and Procedure which was released earlier this year for comments and suggestions. (The comments received from various stake holders has been posted by the Patent Office on its website and can be accessed here)
Legality of the Draft Manual released by the Patent Office: Before going on to the question of software patents a quick observation in regards the Draft Manual of the Patent Office. The BS story, surprisingly, has quoted Justice Krishna Iyer, an iconic, retired, Supreme Court Justice as saying that “neither the controller nor the central government has authority or sanction of law to publish a manual of the kind put on the website”. He proceeds to junk the Draft manual as “irrelevant”. This is quite an intriguing statement from one of the most celebrated judges in Indian history because it is nobody’s case that the Draft Manual has the authority of law. The Manual was always meant to be only an indicator of the practices of the Patent Office and does not have any binding effect on any of the examiners from the Patent Office. In this regard the Patent Controller himself has clearly stated in the preface to the Draft Manual that the Manual does not have the authority of law – “The Manual does not constitute rule making and hence do not have the force and effect of law. Statements made in the Manual are not in themselves an authority for any action by an officer of the Patent Office. While the Manual may be regarded as a handbook, it does not impose any particular line of action and may not be quoted to that end.” The U.K. Intellectual Property Office follows the very same practice.
Software Patents in India: The response of the Red Hat to the section in the Draft Manual of the Patent Office regarding patentability of computer programme was as follows: We find that the draft manual seeks to introduce software patents, and we believe this is not in consonance with the current legal situation which states that “a mathematical or business method and or a computer program per se or algorithms are not patentable.
Red Hat’s observation is bang on the point – contrary to common perception that software patents are not patentable in
The question that then arises is how exactly is the Patent Office granting patents for software programmes if the law expressly forbids such patents?
Section 3(k) of the Patent Act excludes from patentable subject matter “a mathematical or business method and or a computer program per se or algorithms”. The proposal in 2005 had been to amend this section to read as “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 algorithms.” Fortunately however this amendment was not included in the Patent Amendment Bill, 2005, due to opposition from the Open Source community and the Left and it was presumed that Section 3(k) would not allow for the grant of software patents.
However, contrary to common perception, the current wording of Section 3(k) does not impose a blanket ban on all software patents. In this regards the Draft Manual of the Indian Patent Office draws a distinction between ‘software per se’ and ‘software having its technical application in the industry’. As per this distinction a computer programme controlling a technical process can be patented as a part of the hardware. Therefore the Indian Patent Office requires the patentee to draft the patent application for a software programme in relation to particular hardware since an abstract stand alone computer programme is definitely not patentable. The Patent Office illustrates this proposition with the following example: “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable.”
This approach of the Patent Office is not all that surprising and is in line with the practices followed by the Patent Offices of the E.U. and the
While it maybe difficult to find fault with the Draft Manual’s interpretation of Section 3(k) it’s a whole new ball game when it comes to a question of whether or not this is a prudent approach from a policy perspective. For an excellent policy analysis of this situation please click here for the views of an Open Source Evangelist. Also for a general overview on the opposition to software patents please click here for an excellent note by Lawrence Liang of the Alternative Law Forum (ALF).