The author has praised Indian policymakers as they have steadfastly refused to kiss the pig called “software patents”, despite it being dressed up in the lipstick of “innovation”. This gives Indian software developers the freedom to innovate without worrying about patent lawsuits.Lipstick on a pig” is a popular Americanism for making superficial or cosmetic changes that disguise the true nature of a product.
Lobbying by the MNCs
Ever since the Indian Patent Office (IPO) issued the revised Computer Related Inventions Guidelines, a host of MNCs has been busy trying to lobby the Indian government to overturn these guidelines.
- Information Technology has gained special significance in the past two decades.
- It has emerged as a vital tool for scientific development.
- The term “Information Technology” encompasses the whole gamut of inputting, storing, retrieving, transmitting and managing data through the use of computers and various other networks, hardware, software, electronics and telecommunication equipment.
- Industry has witnessed rapid growth due to the computerization of activities which were hitherto carried out manually or mechanically.
- The advent of the internet and the World Wide Web (www) coupled with the exponential growth of processing and storage power has led to capabilities previously unheard of.
- The core elements in the application of Information Technology are computers and their peripherals.
Computer Related Inventions (CRIs)
- Computer Related Inventions (CRIs) comprises inventions which involve the use of computers, computer networks or other programmable apparatus and include such inventions having one or more features of which are realized wholly or partially by means of a computer programme or programmes.
- Creators of knowledge in the domain of Computer Related Inventions (CRIs) have consistently endeavored for appropriate protection of their IPRs.
- The patent regimes have to cope up with the challenges of processing of patent applications in the field of computer related inventions and related technologies.
- This has been a subject of international attention in the recent past.
- Major patent offices across the world are confronted with the issue of patentability of CRIs.
- They have developed examination guidelines/ manuals for examination of patent applications from these areas of technology so as to achieve uniform examination practices.
Legal Provisions relating to CRIs
The Patents (Amendment) Act 2002 (No. 38 of 2002) came into effect on 20th May, 2003.
- It amended the definition of invention under section 2(1)(j) as “Invention” means a new product or process involving an inventive step and capable of industrial application;
and as per section 2(1)(ja)2 “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;
Further, section 2(1)(ac)3 states that “”capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;”
- The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for Computer Related Inventions (CRIs) as under:
(k) a mathematical or business method or a computer programme per se or algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information;
Patents are not suitable for software
- Software developers, and researchers who study innovation, contend that the US, which has the most permissive patenting system in the world, made a huge mistake by bringing software under the ambit of patentability.
- Software falls within the realm of abstract ideas, and it is impossible to draw boundaries around abstract ideas.
- Patent seekers have turned into “clients” and not applicants at United States Patent and Trademark Office (USPTO) and USPTO (much like IPO) has been chronically strained for resources, with patent examiners often having just a dozen hours to assess a patent application.
- The flood of poor quality patents in the US has led to a surge in lawsuits, and the rise of patent trolls—organizations that make nothing, and whose sole business is to acquire patents and use them to extract royalty payments from unsuspecting users.
- Under the Patent Cooperation Treaty, if India allows software patents, it will have to give priority to the existing patents that have been filed in other countries.
India should not make the same mistake
- If these patents are granted in India, MNCs will have the right to exclude Indian companies from using their claimed inventions.
- This will slow down the pace of innovation, and nip India’s growing software product ecosystem in the bud.
- It is to the credit of Indian policymakers that they have steadfastly refused to kiss this pig called “software patents”, despite it being dressed up in the lipstick of “innovation”.
- This gives Indian software developers the freedom to innovate without worrying about patent lawsuits.