In India, Section 3(k) bars patentability of “computer program per se”.
“Writing code is necessarily a mere clerical function to a skilled programmer”
This is the approach of the Indian Government towards software coding. Interpretation of phrase “per se” has been a heated debate. Before, cancellation of Patent Ordinance Act, 2004 ‘per se’ was interpreted as:
“Program alone cannot be patented. It should either show technical effect or should be used in combination with hardware device.”
Rejection lead to unclear definitions and approach to examine software patents is still a mystery. So, today I would like to shed light on problems faced by software industry practitioners.
1. Copyright Vs. patents
Risk involved in awarding copyright protection
This has always been a contentious issue. What if we elect to protect software under copyrights? Putting software in this category can jeopardize the hard work of Engineers.
The factor that mainly concerns protecting software under copyrights is that it can be Reverse Engineered.
Hence, copyright’s protection will not be a good idea.
2. “Computer program per se”
The amended guidelines of 2005 stated that patent protection could be awarded if the technical effect can be found in the hardware. Again, there is no clear definition of technical effect (neither it is defined in patents act, 1970 nor in the guidelines).
3. Utility patents not allowed
Utility patents can protect a software or program producing useful and tangible results.
“Software programs in India are considered as mathematical logics, converted into a language that can be understood by a computer.”
But the fact is converting logic into computer readable format is itself a hard work. One cannot invent new programming language but new software with different utility can be generated.
For example, adding two integers was already known in mathematics, but allowing computer to understand ‘SUM’ function in Microsoft Excel sheet is new utility of already known formula.
4. Weak enforcement of law
Once source code is released in the official journal several manufacturers copy the code and launch cheaper versions of technology. Due to backlog, infringement cases takes 3 to 4 years in settlement, pretty long time to claim damages.
FICCI reported, Intellectual property theft and information insecurity as one of the top risks in 2014. Similar report has shown that $7.8 Billion are lost in theft of IP.
Major manufacturers from abroad are alarmed by this situation & do not prefer investing in India.
5. How to test ?
Software might contain 100,000 to 10 million lines. Insufficiency of software-based databases makes it almost impossible to check execution of each and every code for similarity.
Department of industrial promotion & policy (DIPP) should not be ignorant about software patent laws of other countries. Time has come when policies should be revised & problems of agents, Engineers and other practitioners should be solved.