BY MANJUNATH N.G.
Software patents are patents which cover software ideas, ideas which you would use in developing software. It is a patent on any performance of a computer realized by means of a computer program. Thus, it refers to patents that could be granted on products or processes which include software as significant and the form in which they are put into practice to produce the effect they intend to provide.
Emergence of Software Patenting
Until 1980 software programmers were protected under the copyright law since any software consisted of the source code which came under the purview of literary work. And thus, any software written was automatically covered under copyright law. Only after the landmark decision given by the US Supreme Court in the case of Diamond vs. Diehr (447 US 303 (1980)) patents on software were being granted. Unlike copyright which only protected the code in written form, patents protected the idea underpinning the code. Thus, giving the owners the right to prevent others from using a claimed invention and there was no copying involved, hence giving the owner an exclusive right.
Patent protection as a boon: Patenting software inventions promotes investment in research and development. It became an effective instrument against reproduction and in curbing piracy. Software inventions are disclosed in patents, allowing a person with reasonable programming skills to recreate software capable of performing the ideas patented, leading to promotion of innovation in the software industry.
Software patents resulting from the production of patentable ideas can increase the valuation of small companies. Software patents have become the tools to combat little players in the software market place. Patents must disclose how to make and use an invention in sufficient detail so that ordinary skill in the art can make it and use the invention without undue experimentation.
Software patents do not protect programs if they did only that it would be a minor problem, but what they do is patent the idea on which software is developed. And if ideas can be patented then a range of applications can be claimed to have infringed some idea or the other. Patent protection is much broader in scope and can cover an entire area within which others can stray at their peril.
Large companies have the ability to buy up patents as the average cost of a patent is $20,000 and they keep on filing patents and can tie up smaller companies in costly law fees, thus generating revenue off the monopoly granted by the patent. Patenting software inventions takes investment away from research and development.
Software patenting as a bane: Software patents do not protect programs if they did only that it would be a minor problem but what they do is patent the idea on which software is developed. If ideas can be patented, a range of applications can be claimed to have infringed some idea or the other. Patent protection is much broader in scope and can cover an entire area within which others can stray at their peril.
The software patents in India are also a matter of concern. India has very little software products. Its industry is supplying “bodies” to develop software for global giants such as Microsoft and Nasscom. Patenting a software would push up the cost of the license for users of software as a whole and will make it impossible for Indian companies in the future to break into the global software market with its own products.
Software Patenting with Indian Perspective
India is still infant in the software domain and introducing adopted and biased patent laws could inflict a serious blow to the building Indian software industry. Ambiguities in the Indian Patent law could end up making the Indian software industry a mere puppet in the hands of developing economies. And in the future, with no patent of its own, it will be forced to pay whatever price the giants choose to impose.
The Indian Patent law excludes mathematical method or business method or a computer programme per se or logarithm. It instead states that a mathematical or business method, algorithm cannot be patented; a computer programme which has a technical application in any industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be regarded as technical applications, it obviously opens all software to patent.
Conclusion
The Patent Ordinance definitely has its use and relevance in today’s India particularly in software industry. The use of patent protection while allowing the industry to grow through innovations and invention thereby helps to curb the risk of trivial patents choking the life out of real innovations and inventions. This is the reason a patent should always be created as a “double edged sword” to be wielded with caution and sensitivity.