Thursday, March 31, 2005

LEGISLATION AND COMPUTER-RELATED PATENTS IN INDIA : A.B. Rajasekaran, who is an Examiner of patents and Designs for the Indian Patent office, has published an interesting article on Patents for Computer-Related Inventions in India. The article generally describes the computer-patenting systems in the US and in the EU, and then proceeds to India:

The Patent system in India is governed by the Patents Act 1970 (hereinafter 1970 Act). Unlike the US and Europe, it was not any existing case laws that brought computer-related inventions under patentable subject matter but rather, it was the Patent Act as amended in 2003 that made the new area of technology a patentable subject matter.

The 1970 Act did not exclude explicitly patents for computer related inventions, as computer technology at that point of time was relatively unknown, but the definition of the term invention itself excluded patents for computer programmes. The 1970 Act was amended in 2002 to bring it more, if not full, compliant to the TRIPs agreement which India had signed in 1994.

The Patents Act 1970 as Amended by (Amendment) Act, 2002 (hereinafter, the second Amendment Act) radically changed the definition of invention and also excluded computer programme per se from patentability. It was generally understood that a product embedded with a computer programme producing a technical effect and having an inventive step is patentable.

The latest amendment brought through an ordinance to bring in major changes in the 1970 Act like, introduction of product patent for chemicals and drugs and the introduction of post grant opposition among other things amended the clause 3 (k) excluding computer programme per se from patentable subject matter. Sec. 3 of the Patent Act lists nonpatentable subject matter, Sec.3 (k) excluded a mathematical or business method or a computer programme per se or algorithms for being patentable. The Ordinance divided the contents of Sec.3 (k) into two; Sec.3 (k) now reads, computer programmes per se other than its technical application to industry or a combination with hardware and the new Sec.3 (ka) excludes mathematical method or a business method or algorithms from being patentable.

It was the highlighted phrase that purportedly expanded the scope of patentability of computer-related inventions (reported earlier on this blog), and predictably caused the Indian software industry to go bananas. There was some valid concern here from a logistical standpoint, since Indian courts had virtually zero judicial precedence in determining what this phrase would mean. The other rub was that the law used the term "technical application" (as opposed to "technical effect" or "technical contribution" used in parts of the EU).

The European Board of Appeal, which first emphasized the need for the invention to make a "technical contribution", never used the term "technical application". Why, you may ask? According to the article, there are specific differences:

"Technical Effect"

  • Solves a technical problem or produces a technical effect either inside the
    machine or outside the machine
  • Utilizes technical means to solve a technical problem
  • Utilizes technical means to produce a technical effect

"Technical Application"

  • Need not solve a technical problem or produce a technical effect
  • Since a computer as a machine uses forces of nature every application that runs on a computer is technical
Thus, under the "technical application" interpretation of computer-implemented inventions, just about anything can be patented, since computers, by their very nature, are "technical" machines, and could feasibly be used to obtain business-method patents as well (even though other provisions in the Act expressly prohibit it). Interesting stuff.

- One thing that greatly disappointed me while reading the article was the conclusion of the article:

It is generally understood now that there is no correlation between the Innovativeness of the companies, particularly software companies, and the strength of patent protection. In fact, it is now understood that stronger patents for software-related inventions has not increased the inventiveness of the companies but rather is an inhibitor.

Sequential value addition and interoperability is the inherent characteristic of software related inventions. India as dynamic technology adopter has more chance on making sequential innovations. But, the broader protection that was offered would have only benefited the technology leaders like the US and Europe to use it more as defensive strategy.

A weaker protection at this point of time, when Indian software industry is on the early stage of the learning curve is a necessity to redo the classic Indian pharma act.

There are so many things wrong with this sentiment that it's hard to determine where to begin. It was like drinking a delicious cup of coffee, only to find a dead roach at the bottom of the cup. It is "understood" that software patents inhibit innovation? Oh really? And the notion that early-stage technological development benefits from weaker patent protection is ludicrous. And what happens when the technological development "matures" - exactly how do they plan to catch up in terms of patent protection?

But I digress . . .

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