On the website of bharatmatrimony.com, the “Virtual Matrimony Meet” is described as an “online swayamvar that provides a unique platform for members of a particular caste or community from across the world to meet and interact.” Basically the meet is an “event that aims to provide an online platform for members of the same community to interact with their prospective partners from across the globe on a particular date and time set by the website.” The setup works is follows, during the meet free & paid members of a particular caste or community are invited for an interactive chat session at a particular date & time. All registered members of Bharatmatrimony can participate in the meets. Paid members can initiate chat and also send instant e-mails during the meet. Free members can only reply to the chat conversations and e-mails initiated by paid members. The benefits of the virtual meet setup, as opposed to the earlier offline meet model, is aptly stated by Murugavel Janakiraman, CEO, BharatMatrimony.com, in the following words, “unlike offline matrimony meets where participation is highly localized, Virtual Matrimony Meets provide a platform for people to interact with members of their particular community from around the world.”
Thus, the question is whether the portal should be entitled to patent protection? It is pertinent to note that in the instant case, the application for patent seems to be a US application. However, this note aims to discuss the position of law in India, based on the assumption of the patent application for the Virtual Martrimony Meet being filed in India.
Generally, two sets of arguments can be raised against granting patent to the Virtual Matrimony Meet setup: (1) it’s a business method patent and (2) it’s an attempt to patent a computer program.
BUSINESS METHOD: Section 3(k) of the India Patent Act reads as follows:
“The following are not inventions within the meaning of the Act:
A mathematical or business method or a computer programme per se or algorithms.”
Definition & Other Issues:
Though there is no Indian jurisprudence on the matter, a general definition of business methods would be broad enough to include essentially commercial activities where the hardware and software elements are described and claimed generally and geared towards the ends of a particular business system. More specifically, as per the definition given by Anatoli Kalpakidou in “Business Method Patents: Should They Survive in Europe?” (13 Int’l J.L. & Info. Tech. 243), business methods would cover, inter alia, economic activities such as buying and selling items, marketing techniques, financial schemes and strategies for use with sports and games.”
To give a brief background, it should be noted that over a span of time there has been a substantial reversal in the treatment of business method patents. Historically, business method patents were a strict no no. However, presently United States allows patenting of pure business methods and jurisdictions like India and UK look at qualified patentability. However, many academicians continue to oppose business methods patents, a few of the pros and cons put forth are enumerated below:
Supporters of business method patents argue that such patents would actually support and incentivise innovation as the owner of the patented business model would be allowed to commercially exploit the model, to the exclusion of his competitors. Thus, with the surety of exclusive rights to exploit his model, the owner would have more incentive to innovate.
The critics of such patents argue that in reality such patents actually “stifle innovation”. They argue that once an owner is granted proprietary rights over a business model, he enjoys the exclusive rights over the model for a long time, without the worry of competition. Thus, the exclusionary nature of the proprietary patent regime actually results in these owners (who once enjoy patent protection) not wanting to innovate further. A more refined version of this critique is that free markets work on the basis of competition. Thus, innovation or incentive to innovate comes from the competition present in the market and the desire to become the market leader and attract customers. Patenting of business methods actually creates an imbalance in the free markets as it grants exclusive proprietary rights to a market player to the exclusion of other market players. Thus, given the fact that market competition already facilitates innovation, there is no need for business method patents, in fact such patents actually create imbalances in the efficient functioning of free markets. This is why we see that several consumer organisations rather than favouring business method patent are more in favour of freedom in copying them, which they believe stimulates choice and competition.
Also, there are concerns that granting such patents would adversely affect the interest of small enterprises as such patents would demand money, time and expertise that small businesses cannot afford and put them in a disadvantage position relating to big companies. Obviously the supporters of business method patents argue that such patents actually shield small enterprises by protecting their work and ideas against theft by bigger companies.
(Refer to A. Kalpakidou, “Business Method Patents: Should They Survive in Europe?” 13 Int’l J.L. & Info. Tech. 243 and John J. Love, “Business Method Patents”, The Richmond Journal of Law and Technology, Vol. VII, Issue 2, Fall 2000.)
United States:
Unlike the world at large, in the United States business methods fall within the realm of patentable subject matter post the Federal Circuit dicta in the State Street Bank case. It is pertinent to note that following this case the United States Patent and Trademark Office created a new class for business method patents under Section 705. As per the section, the new class consists of “methods for performing data processing operations or for performing calculation operations wherein the apparatus or method is uniquely designed for or utilized in the practice, administration, or management of an enterprise, or in the processing of financial data.” Based on the definition and scope of Section 705, author John Love states that the financial and business data processing areas can be grouped into four categories that are focused to business operations of:
(1) Determining who your customers are and the services they need. Includes operations research and market analysis (with the aim of satisfying those needs through your products and services), (2) Informing customers that you exist, showing them your products and services and getting them to purchase such as advertising management, (3) Concluding commerce over the Internet like exchanging money and credit such as electronic payment processes, billing, banking and funds transfer, and (4) Tracking resources, money and products such as human resource management.
(Refer to A. Kalpakidou, “Business Method Patents: Should They Survive in Europe?” 13 Int’l J.L. & Info. Tech. 243 and John J. Love, “Business Method Patents”, The Richmond Journal of Law and Technology, Vol. VII, Issue 2, Fall 2000.)
United Kingdom & India:
Similar to the computer program exception, one has to be mindful that in the Indian statute, the business method exception is qualified by the per se stipulation. Thus, on a literal interpretation of the text, if a business method is included in an otherwise patentable product/process, patent protection cannot be denied on the ground of inclusion of a business method.
The real debate is these jurisdictions is: What makes a concerned invention ‘otherwise patentable’?
This issue was dealt with by the UK Court of Appeal in Aerotel’s case, [2007] 1 All E.R. 225. In the concerned case, the Court of Appeal reviewed EPO and UK case law relating to excluded subject matter and laid down the following structured approach to interpret such exclusionary provisions:
In inventions including excluded subject matter, the patent examiner should (1) properly construe the claim; (2) identify the actual contribution; (3) ask whether it falls solely within the excluded subject-matter; and (4) check whether the actual or alleged contribution is actually technical in nature (although this step may be superfluous). If the invention incorporating excluded subject matter satisfies the requirement of ‘technical contribution’, it should be granted patent protection.
It is pertinent to note that the term ‘technical contribution’ is yet to be clearly defined. For instance, the Court of Appeal in Aerotel’s case interpreted ‘technical contribution’ to be creation of a new system which represented a new physical combination of hardware. As per the court, this contribution of the new physical combination was more than just a method of doing business as such (similar to India’s per se approach), and was clearly technical in nature. On the other hand in Vicom’s case, the court interpreted faster processing to be ‘technical contribution’, taking the concerned invention outside the realm of the excluded subject matter. However, while interpreting the term ‘technical contribution’ one should note that, “the fact that the method of doing business may be an improvement on previous methods of doing business is not material. Novel or inventive steps falling within purely excluded matter do not count as a ‘technical contribution’.” (Aerotel’s case)
In India, the Draft Patent Manual follows the UK position on excluded subject matter and broadly states that an invention otherwise barred by Section 3(k), will fall out of the category of excluded subject matter if it has ‘technical character’ or solves a ‘technical problem’.
US to grant patent to Virtual Matrimony Meet:
Thus, to sum up, unlike the United States, India and UK don’t allow patentability of pure business methods and in order to granted patent in these countries the inventions categorized as business methods have to satisfy the additional qualifier of ‘technical contribution’ or ‘technical character’. So to apply this distinction to the case at hand, if we were to reach the conclusion that Virtual Matrimony Meet is a business method, it would fall within the realm of patentable subject matter in the US. However, if so categorized in India and UK, the Virtual Matrimony Meet would have to show the existence of ‘technical character’ or ‘technical contribution’ before it could be placed in the realm of patentable subject matter.
Virtual Matrimony Meet in India:
In light of the above given background, the question the Indian patent examiner needs to ask in the present case is two fold: First, whether Virtual Matrimony Meet is a business method and second, if so, is there any ‘technical contribution’ made by the concerned invention.
To answer the first question lets go back to the description of Virtual Matrimony Meet. On the website of Bharatmatrimony.com the meet is described as an “online Swayamvar that provides a unique platform for members of a particular caste or community from across the world to meet and interact.” The benefit of the setup as stated by Murugavel Janakiraman, CEO, is that, “unlike offline matrimony meets where participation is highly localized, Virtual Matrimony Meets provide a platform for people to interact with members of their particular community from around the world.” As per their “about us” page, Bharatmatrimony.com can be described as a website or network which is in the business of facilitating marriages and helping one find their life partner (for better or for worse).
Thus, given their (Bharatmatrimony.com) business model, business objectives and the problems faced by offline matrimonial meets, the Virtual Matrimony Meet is seen as a way to increase the participation and interaction of the members of the website, in order to help serve the end aim of the business model, i.e., helping the member find a life partner. More specifically, as per John Love, a category of business method patents is ‘the determination of who your customers are and the services they need, with the aim of satisfying those needs through your products and services.’ Virtual Matrimony Meet squarely falls within this categorization as it’s a business model/setup aimed at satisfying the customers of Bharatmatrimony.com by providing them with a broader base for finding their life partners through such online meets. Consequently, given the fact that the setup is merely an improvement to serve the business of Bharatmatrimony.com, it comes under the scanner for being a business method.
The next question which follows is whether the concerned setup is a mere improvement on the previous business methodology or does it solve a ‘technical problem’. To understand this better, let’s take the example of an alumni google group where one’s batchmates are also members. So as the administrator of the group, I post a message on the group stating that everyone should sign up on Google Talk on x date at y time. Does this setup have any ‘technical contribution’ or does it solve any ‘technical problem’? Clearly it does not. In the present case, bharatmatrimony.com is trying to patent a similar setup by way of Virtual Matrimony Meet. One should note that Virtual Matrimony Meet is merely an innovative business technique and does not solve any technical problem or even constitute a new system which represented a new physical combination of hardware (Aerotel’s parameter) to give the setup any ‘technical character’[ as required by the Draft Patent Manual. Thus, on this ground alone the application should be dismissed as constituting excluded subject matter under Section 3(k) of the Indian Patent Act, 1970.
Computer Programs and Computer Software:
It is pertinent to note that in UK, the Aerotel approach also applies to determine patentability of computer software and computer programs. Thus, in order to determine patentability of computer software, the patent examiner has to follow the structured four step approach to examine if there is any ‘technical contribution’, in the absence of which, the software will not be granted patent protection.
As expected, imitating the UK approach, the Draft Patent Manual (quite controversially) introduces the requirement of ‘technical contribution’ to the patentability of computer software and programs. Thus, as regards the present case, the arguments earlier raised in relation to patentability of the Virtual Matrimonial Meet as a business method and the absence of ‘technical contribution’ or ‘technical character’ in the concerned invention would apply squarely to the portal as a computer program.
Consequently, the absence of ‘technical contribution’ would render the computer program being used to execute Virtual Matrimony Meet unpatentable.
Some Notes:
First, a finding of unpatentable subject matter on either of the two grounds would result in the alleged invention being unpatentable. However, given the fact that the question involved in both the scenarios is that of ‘technical contribution’, the examiner is likely to come to the same conclusion in both the cases.
Second, it is pertinent to note that the general approach of the Court of Appeal and the structured test laid down by the court in the Aerotel case, was critiqued by Judge Fysh (Judge, Chancery Division) in Aerotel Ltd. v. Wavecrest Group Enterprises & Ors., [2008] EWHC No. 1180 (Pat). However, given that the fact that the judgments of the Court of Appeal bind the Chancery Division, the law and the structured test laid down by the Court of the Appeal still holds ground.
Interesting read, SS.
A really well written from amongst the new SpicyIP set.
Keep it up.
Thank you!
Interesting post suchita. however, I have few comments with respect to the UK position specifically with refernce to the Aerotel. It would have been more conclusive discussion had you also examined the Oct 2008 decision of Symbian (Supreme Court of Judicature- [2008] EWCA Civ 1066. That has extensively discussed the UK and EP position w.r.t computer programs and has reconcilled the approach toa great extent. Also, as your rightly observed as to the “superfluous’ nature of the fourth step in Aerotel approach, Lord Neuberger, while following Aerotel, has emphasised the importance of the “technical character check” in the same step. He said it is not a mere check but an important determination, making the step, rather, less superfluous. The judgement does bring greater clarity on the approach of UK vis-a-vis EP, however leaves the definition of “techincal” or the ambit of exclusion in Art52(2) &52(3) of EPC or Sec1(2) of the 1977 Act, open and says it will remain a fact to fact based determination.
Thank you for your input.
As you pointed out, technical character of an otherwise unpatentable invention is understandably the most important part of the invention as it takes the concerned invention out of the realm of unpatentability.
Also, in all the cases dealing with ‘technical character’, the concept hasn’t been defined anywhere. Given the pace at which technology is developing, the varied inventions and the importance of the concept in the realm of patents, a clear cut definition of the term might not be desirable, or even possible.