[Reader-list] Say No To Software Patents

[Anivar Aravind]

*The Scenario*

To help people who file patent applications, indian patent office is
 writing a manual. Its draft is what is being discussed. this draft is not
only about software, but about how to file patents in general the draft does
say clearly that 'software per se is not patentable' as per the law.
 However, the instructions given in the manual clearly tell people that you
can file software patents in combination with hardware.what we have to do is
to not let that interpretation go under 3(k).
Please see sectiion 4 for non-patentable items. and read the relevant
 sections. (I attached it at the end of the mail)
Previously the industry tried to change the law by a presidential  ordinance
but parliament rejected it. That should be our argument.  How can the manual
try to enable a  possibility that law forbids?   and most important:
 Software does not work unless in combination with hardware. Therefore, if
software in combination with hardware is patentable, then all software is
patentable.  That is absurd. This is the strongest argument to not make such
statements in the manual and we should interpret such attempts as equivalent
to backdoor entries to abuse the law

Those industries who are pushing this through backdoor must be informed
that:
1. Software is already protected  under copyright, and no  additional
protection either to individuals or industries is required
2. Hardware innovations are already patentable under the regular
 innovations therefore all innovators are already covered
3.The current ICT revolution happened is a fact on the face that we do  not
need any more encouragement to the innovators  and keep science and
technology under public domain


V.R Krishna Iyyer comments  as follows in his response to Patent Office
"neither the controller nor the central government has authority or sanction
of law to publish a manual of the kind put on the website".
*
Software patents in India as per Clause 3(k) of the Indian Patent Act*

We find that the Draft Patent Manual seeks to introduce software patents and
we believe that this is not in consonance with the current legal situation
India where Clause 3(k) of the Indian Patent Act clearly says,

   "A mathematical or business method or a computer programme per se or
algorithms are not patentable".


You may recall that the Patent Amendment Act 2005 sought to introduce
software patents. The amendment proposed in the Patent Amendment Act 2005
for Clause 3(k) was,

   "a computer programme per se other than its technical application to
industry or a combination with hardware; a mathematical method or a business
method or algorithms."



However, this amendment was rejected by the Indian Parliament, which chose
to retain Clause 3(k) as it is. On reviewing the Draft Patent Manual, we
find that it seeks to make technical applications of software patentable. As
you can see from the above, this approach was explicitly rejected by the
Indian Parliament. The relevant section of the Draft says:

   Draft Manual 4.11.7
   4.A mathematical method is one which is carried out on numbers and
provides a result in numerical form (the mathematical method or algorithm
therefore being merely an abstract concept prescribing how to operate on the
numbers) and not patentable. However, its application may well be
patentable, for example, in Vicom/Computer-related invention [1987] 1 OJEPO
14 (T208/84) the invention concerned a mathematical method for manipulating
data representing an image, leading to an enhanced digital image. Claims to
a method of digitally filtering data performed on a conventional general
purpose computer were rejected, since those claims were held to define an
abstract concept not distinguished from a mathematical method. However,
claims to a method of image processing which used the mathematical method to
operate on numbers representing an image can be allowed. The reasoning was
that the image processing performed was a technical (i.e. non- excluded)
process which related to technical quality of the image and that a claim
directed to a technical process in which the method used does not seek
protection for the mathematical method as such. Therefore the allowable
claims as such went beyond a mathematical method.


Those interested in reading the Full text of Section 3(k) relating to
software patents can check:
http://osindia.blogspot.com/2008/08/full-text-of-section-3k-relating-to.html

The full Draft Patent Manual is at:
http://ipindia.nic.in/ipr/patent/DraftPatent_Manual_2008.pdf


Let us work together and defeat this menace.

~ Regards

Anivar