Software patents debate

The computer code that software runs can more accurately be conceived of as a method of expression like the English language. Thus, prohibiting software patents because they are based on mathematics would be the equivalent of prohibiting other utility patents because they are written in English. During the PC Revolution of the s led by Steve Jobs and Bill Gates, among others, hardware and software began to be severed into separate products.

Instead of purchasing a word processor and a calculator, for example, consumers could now purchase a computer with a central processing unit CPU capable of running both a word processor and a spreadsheet program, each of which is based on a series of instructions the software program gives to the CPU. Thus, the primary value of software is the functionality it delivers to the end user. Copyright law protects words alone and not the broader idea or function represented by those words.

Patent law, by contrast, protects ideas and functions, but not the specific words that describe those functions. The problem of limiting software to copyright protection is that any enterprising software developer can simply tweak the code of a particular program while maintaining its core functionality without running afoul of copyright law.

Because the value of software is in its functionality rather than in its method of expression, patent law is the only appropriate protection for it. No one doubts that computer hardware is patentable.

Bilski v. Kappos , Obtaining a patent on software is much more controversial because software is not tied to a specific machine in the classic conception of the term, but is instead meant to be run on any general purpose computer. Goetz; Should Patents be Awarded to Software? It is well-known in the technological arts that the functions of a particular program can be either wired into a chip as hardware or coded as software.

The only difference is that a software program costs less to produce and is more efficiently sold to end-users than hardware. It was claimed that the invention provided a method and a corresponding device for accessing information sources and services on the web. During the patent prosecution process, it was stated that a the invention achieves objective in a manner that is quicker and easier to use than the methods known at the time of invention.

The IPO rejected the patent application on the ground that the method claims are computer programs per se under Section 3 k and device claims lack novelty and inventive step under Section 2 i j. However, IPAB turned down the appeal citing a lack of disclosure of technical effect or technical advancement in the application.

After hearing the arguments of the parties, the Court directed the IPO to re-examine the Petitioner's patent application within a period of two months, after granting a hearing to the patent applicant. Post this order, it is understood that the IPO had re-examined the patent application in light of the said ruling and came to conclusion that the objections as regards lacking novelty still persisted and the invention fell within the ambit of Section 3 k.

For the ame reasons, the patent application, once again was refused. However, in a larger sense, it is the reasoning of the Delhi High Court which assumes significance. Some of the significant points of reasoning of the Delhi High Court are described below, along with the relevant excerpts:.

Certainly, a reiteration that section 3 k bars only "computer programs per se" and not all inventions based on the computer programs. The relevant excerpts Para 10 of the Court's ruling are reproduced below:. In today's digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, block-chain technologies and other digital products would be based on computer programs, however the same would not become non-patentable inventions — simply for that reason.

It is rare to see a product which is not based on a computer program. Whether they are cars and other automobiles, microwave ovens, washing machines, refrigerators, they all have some sort of computer programs in-built in them.

Thus, the effect that such programs produce including in digital and electronic products is crucial in determining the test of patentability If the invention demonstrates a technical effect or technical contribution it is patentable even though it may be based on a computer program. The relevant para is interspersed below Para 13 of the Court's ruling :. While the initial Draft Guidelines defines "technical effect", the said definition is not to be found in the later guidelines.

There can be no doubt as to the fact that the patent application deserves to be considered in the context of settled judicial precedents which have now laid down the interpretation of Section 3 k , the Guidelines and other material including the legislative material. Intex 5 , where Swedish telecom giant, Ericsson was granted an injunction against Intex for any devices that infringed on the eight Standard Essential Patents that are part of Ericsson's portfolio.

Section 3 k , as in the current form, prohibits the patenting of "a mathematical or business method or a computer program per se or algorithms". However, when Section 3 k was initially presented in the Parliament as Patents Second Amendment Bill, , the phrase "per se" for computer programs was not there.

The phrase "per se" was introduced in the Bill on the recommendations of the Joint Parliamentary Committee "JPC" , subsequently passed by the Parliament. The phrase "per se" has been a contentious issue, ever since. While some argue that a software must not be protected under patents and only as a copyright , others suggest that the inclusion of the word "per se" reflects the parliament's intent to exclude only computer programs under Section 3 k i.

The first set of guidelines was published in August Expectedly, it shed light on the per se issue, with a reference to Oxford Advanced Learners Dictionary definition of ' per se ' as 'by itself' — to show that you are referring to something on its own, rather than in connection with other things.

However, the other content of the guidelines generated controversy, given its liberal approach and overreaching impact favouring the software claims. This made IPO issue a notification suspending the guidelines. The second set of guidelines published in February was expected to fix the issues present in the first set. However, it broadened the exclusion rule in a form of a three-step test under Section 3 k by stating that software of any nature, unless in conjunction with novel hardware, cannot be patented.

Hence, the guidelines were replaced with the revised guidelines for Examination of Computer Related Inventions, via an Order from the Controller General "Third set".

The Third set done away with this test and instead focussed on substance of the invention over the form, while examining the patent application. It stated. It is well-established that, in patentability cases, the focus should be on the underlying substance of the invention, not the particular form in which it is claimed.

As a result, the contribution of the software development for the other fields of technology will significantly decline. Under the Anglo- American legal system the intellectual property right is justified based on the utilitarian theory, as opposed to the natural rights theory and theory of Personhood. Both natural rights theory and utilitarian theory is consequentialist. Inapplicable Provisions Laws that need Amendment Matters that need enactment.

Contact us How to submit a blog post. Intellectual Property and Copy Right Blog. Print Email. Theoretical Basis of Software Patent The emergence of the Intellectual property gives rise for a debate on whether it should or should not be protected by law. Utilitarian Theory Utilitarian theory is the most dominant theory in providing justification for the protection of the current intellectual property regime.

Gruner in his article lists five public benefits that may be accrued from the incentive to software developers through protecting software patents, these are; i. Furthering the investment of resources in the refinement and popularization of inventions to achieve the commercialization and widespread availability of patented products and services, iv.

Ensuring prospective studies to identify additional or improved applications of inventions and v. Personality-Based justification of software patent This third justification for the protection of IP is based on the philosophies of Hegel. Arguments against Patentability of Software Those who are against patentability of software programs, mainly provide the following arguments.

Conclusion Under the Anglo- American legal system the intellectual property right is justified based on the utilitarian theory, as opposed to the natural rights theory and theory of Personhood. Finally, perhaps journals should enforce a difficult choice for most academics—to publish OR patent, but not both. A patent is a publication, after all, even if not peer-reviewed. We live in the digital age, and plenty of new innovations coming out are computer related.

The call to end software patents is growing, but doing so may be a Faustian bargain. How will we protect and incentivize the next great idea to become a reality—to move from paper to practice? Clearly though, the list of problems associated with software patents is growing and the list of solutions needs to catch up.

In IP News. Conclusion We live in the digital age, and plenty of new innovations coming out are computer related.