The patent office for the first time made a clear interpretation of the Patents (Amendment) Act, 2002 to mean that if a software has novelty, is inventive or tangible, and has proper technical effect or industrial application, it can be patented. The guidelines serve as a reference for officers in granting patents. Software product industry experts are against modifying the law to make computer programs easily patentable, arguing that innovation in the area is often incremental and programs are built on top of other programs.
They cautioned that if the guidelines are made into law, programmers will be barred from using a particular method to solve a problem without the permission of the idea's owner, like in the US. The new guidelines will make it easier for companies to file for software patents in India, but for startups, for whom innovation is critical, the upside is almost none. “We want Indian entrepreneurs to be focused on innovation and not litigation,“ said Venkatesh Hariharan, member of software product think-tank iSPIRT's software patents expert team. “We fear that these guidelines will open the floodgates for software patenting and the resultant litigation because software patents are the most contentious and litigated sector of patents in jurisdictions that allow it.“
Indian law excludes grant of patents to mathematical or business methods, algorithms and computer programs, which software industry body Nasscom has said was ambiguous. Software is protected through copyright.
To understand the difference between patents and copyrights, consider their implication in the music industry. A sequence of notes make music. A tune created using a sequence of notes is protected by copyright to prevent others from copying the tune and profiting from it. But acquiring a patent would bar other musicians from including or building on that sequence of notes to compose a new tune altogether. A musician would be forced to buy musical sequence licence. Similarly, thousands of instructions to the computer make up a program. Thousands of programs packaged together make a software. The unique combination of these program algorithms is protected by copyright law. While a patent protects an idea, a copyright protects the expression of an idea.
Although the Patent Act was passed in Parliament, the guidelines for its implementation and examination is set by the patent office and are subject to changes from time to time. The office released draft guidelines and invited comments before issuing its final guidelines on August 21.
The new guidelines allow companies to show innovation in just software, rather than in both software and hardware as was previously required. This also makes it easier to register a patent for technical innovation in a business method -the basis of most patents filed in the business process outsourcing industry.
“We feel that the recently issued (guidelines) will bring in software patents through the backdoor, and this is not good for the Indian software product ecosystem,“ said Hariharan of iSPIRT, who plans to meet with the patent office in the coming weeks.
Industry experts said the guidelines are problematic also because of the rapid pace of software development, often incremental.
Sauce for the Goose, Mr Indian Gander
There is little reason to believe that Indian software product developers will fare differently from foreign ones.Intellectual property rights are not an unqualified blessing, true. But as Indian IT moves to the next stage of development, it needs IPR protection. Only those who refuse to accept the need to evolve and want to stay in their little comfort zones of low effort need be scared of tighter IPR
The Economic Times, New Delhi, 7th Sept. 2015
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