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The thought of "intellectual property" in India over the last few years has taken on some epic proportions for a number of reasons. One of the primary reasons, attributable to the growing awareness among the urban Indian population, is of the importance and, more importantly, the commercial benefits in protecting its intellectual property possession both within and covering India. And under primary theory of intellectual property protection, patent law is to encourage scientific research, new technology and commercial progress. The basal principle of patent law is that the patent is granted only for an invention i.e. New and useful the said invention must have novelty and utility. The grant of patent thus becomes of commercial property and also called an intellectual property. And the computer software is a relatively new recipient of patent protection.
The term "Patent'' has its origin from the term "Letter Patent''. This expression 'Letter Patent' meant open letter and were instruments under the Great Seal of King of England addressed by the Crown to all the subjects at large in which the Crown conferred sure possession and privileges on one or more individuals in the kingdom. It was in the later part of the 19th century new inventions in the field of art, process, formula or manner of manufacture, machinery and other substances produced by manufacturers were on increased and the inventors became very much concerned that the inventions done by them should not be infringed by any one else by copying them or by adopting the methods used by them. To save the interests of inventors, the then British rulers enacted the Indian Patents and produce Act, 1911.
With respect to patentability of software -related inventions, it is currently one of the most heated areas of debate. Software has come to be patentable in up-to-date years in most jurisdictions (although with restrictions in sure countries, notably those signatories of the European Patent custom or Epc) and the number of software patents has risen rapidly.
Meaning Of Software Patenting
The term "software" does not have a definite definition and even the software industries fails to give an specific definition. But it is basically used to describe all of the distinct types of computer programs. Computer programs are basically divided into "application programs" and "operating theory programs". Application programs are designed to do specific tasks to be executed through the computer and the operating theory programs are used to manage the internal functions of the computer to facilitate use of application program.
Though the term 'Software patent' does not have a universally thorough definition. One definition suggested by the Foundation for a Free facts Infrastructure is that a software patent is a "patent on any execution of a computer realized by means of a computer program".
According to Richard Stallman, the co-developer of the Gnu-Linux operating theory and proponent of Free Software says, "Software patents are patents which cover software ideas, ideas which you would use in developing software.
That is Software patents refer to patents that could be granted on products or processes (including methods) which include or may include software as a requisite or at least requisite part of their implementation, i.e. The form in which they are put in custom (or used) to furnish the result they intend to provide.
Early example of a software patent:
On 21st Sep 1962, a British patent application entitled "A Computer Arranged for the self-acting clarification of Linear Programming Problems" was filed. The invention was implicated with sufficient memory supervision for the simplex algorithm, and may be implemented by purely software means. The patent was granted on August 17, 1966 and seems to be one of the first software patents.
Conceptual difference in the middle of Copyright And Patent
Software has traditionally been protected under copyright law since code fits quite genuinely into the article of a literary work. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the originator to prevent an additional one entity from copying the agenda and there is generally no need to register code in order for it to be copyrighted. While Software Patenting has recently emerged (if only in the Us, Japan and Europe) where, Patents give their owners the right to prevent others from using a claimed invention, even if it was independently advanced and there was no copying involved.
Further, it should be noted that patents cover the basal methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the basal methodologies.
The issues involved in conferring patent possession to software are, however, a lot more involved than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of security it confers is qualified to the software industry. The second is the nature of software, and whether it should be subject to patenting.
However, issues involved in conferring patent possession to software are a lot more involved than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of security it confers is qualified to the software industry. The second is the nature of software and whether it should be subject to patenting.
a) distinct subject Matters
Copyright security extends to all primary literary works (among them, computer programs), dramatic, musical and artistic works, along with films. Under copyright, security is given only to the singular expression of an idea that was adopted and not the idea itself. (For instance, a agenda to add numbers written in two distinct computer languages would count as two distinct expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright.
Generally patents are conferred on any 'new' and 'useful' art, process, formula or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical.
b) Who may claim the right to a patent /copyright?
Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright.
The patent, on the other hand is granted to the first to apply for it, regardless of who the first to produce it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to genuinely apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.
c) possession conferred
Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these possession are tempered by the possession of fair use which are available to the public. Under "fair use", sure uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently advanced by two distinct companies, neither would have a claim against the other.
A patent confers on the owner an absolute monopoly which is the right to prevent others from making, using, contribution for sale without his/her consent. In general, patent security is a far stronger formula of security than copyright because the security extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents. Many patent applications cover very small and specific algorithms or techniques that are used in a wide collection of programs. often the "inventions" mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.
d) period of protection
The Trips deal mandates a period of at least 20 years for a goods patent and 15 years in the case of a process patent.
For Copyright, the deal prescribes a minimum period of the lifetime of the author plus seventy years.
Jurisdictions Of Software Patenting
Substantive law concerning the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are distinct under distinct jurisdictions.
Software patents under multilateral treaties:
o Software patents under Trips Agreement
o Software patents under the European Patent Convention
o Computer programs and the Patent Cooperation Treaty
Software patenting under Trips Agreement
The Wto's deal on Trade-Related Aspects of Intellectual property possession (Trips), particularly article 27, are subject to consider on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.
According to Art. 27 of Trips Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of commercial application. (...) patents shall be available and patent possession enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced."
However, there have been no dispute community procedures concerning software patents. Its relevance for patentability in the computer-implemented enterprise methods, and software facts technology remains uncertain, since the Trips deal is subject to interpretation.
Software patents under the European Patent Convention
Within European Union member states, the Epo and other national patent offices have issued many patents for inventions enchanting software since the European Patent custom (Epc) came into force in the late 1970s. article 52 Epc excludes "programs for computers" from patentability (Art. 52(2)) to the extent that a patent application relates to a computer agenda "as such" (Art. 52(3)). This has been interpreted to mean that any invention which makes a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if a computer agenda is used in the invention.
Computer-implemented inventions which only solve a enterprise question using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in enterprise does not mean it is not patentable if it also solves a technical problem.
Computer programs and the Patent Cooperation Treaty
The Patent Cooperation Treaty (Pct) is an international patent law treaty, which provides a unified course for filing patent applications to protect inventions. A patent application filed under the Pct is called an international application or Pct application. Under the Pct, the international hunt and the preliminary test are conducted by International Searching Authorities (Isa) and International preliminary Examining Authority (Ipea).
Current Trend
However, before we start hailing the coming of a new era and equating the patenting of software in India it would be well worth our while to take a pause and observe the realities of software patenting. We could do this by seeing at examples of countries in which software patenting has already come to be the order of the day, such as in the Us and Japan .
United States
The United States Patent and Trademark Office (Uspto) has traditionally not considered software to be patentable because by statute patents can only be granted to "processes, machines, articles of manufacture, and compositions of matter". I.e. In particular, patents cannot be granted to "scientific truths" or "mathematical expressions" of them. The Uspto maintained the position that software was in result a mathematical algorithm, and therefore not patentable, into the 1980s. This position of the Uspto was challenged with a landmark 1981 supreme Court case, brilliant v. Diehr. The case involved a gismo that used computer software to ensure the definite timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that associated to real world manipulation. The court then ruled that as a gismo to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could.
But in 1982 the U.S. Congress created a new court i.e the Federal Circuit to hear patent cases. This court allowed patentability of software, to be treated uniformly throughout the Us. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established.
Moreover, several thriving litigations show that software patents are now enforceable in the Us. That is the reason, Patenting software has come to be farranging in the Us. As of 2004, almost 145,000 patents had issued in the 22 classes of patents covering computer implemented inventions.
Japan
Software is directly patentable in Japan. In various litigations in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita won a court order barring Justsystem from infringing Matsuhita's Japanese patent 2,803,236 covering word processing software.
Indian Position
With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: "a mathematical formula or a enterprise formula or a computer programme per se or algorithms".
However, the up-to-date amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into result from 1st Jan., 2005. Apart from turn in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.
Hence, the amendment means that while a mathematical or a enterprise formula or an algorithm cannot be patented, a computer programme which has a technical application in any manufactures or which can be incorporated in hardware can be patented. Since any commercial software has some manufactures application and all applications can be construed as technical applications, obviously it opens all software patenting.
In any case, any enterprise seeking to file a patent application for software under the Ordinance should ensure that its invention firstly, follows the three basic tests:
o Inventive Steps
o Novelty
o Usefulness
Therefore, it is important that the software sought to be protected is not merely a new version or an correction over an existing code.
Further, in accordance with the specific requirements of the Ordinance with regard to patentability of software, the software should necessarily have a technical application to the manufactures or be intrinsic to or "embedded" in hardware. This is to prevent against any hereafter litigation or claims of infringements being raised, which is a sure probability even after a patent has been granted.
Conclusion
India for its part seems to have adopted the more conservative arrival of the European patenting norms for software. But the Ordinance definitely has its use and relevance in today's India, particularly for our growing domestic semi- conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent security while allowing the manufactures to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of real innovations and inventions. This is the theorize a patent should all the time be treated as a "double edged sword", to be wielded with caution and sensitivity.
Now whether, in reality this will be implemented on a rigid basis or will come to be broad in scope through application (as in the U.S.), and, more importantly, whether the Ordinance would, in fact, result in increased innovation and inventions in the software industry, remains to be seen.
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