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By Invitation Startup India may be non starter if patent office has its way

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If A Blanket Ban On Patenting Of Computer Programme Related Inventions Is Put In Place, It Will Hit Innovations
The government's major initiative announced by the Prime Minister Narendra Modi on January 16 has prepared the ground for an innovation-friendly atmosphere in the country . The last two decades saw the growth of the IT industry in India, making a huge contribution to our economy . However, the IT industry was acting more as a back office for various international businesses and the investment on innovative products was lacking.
The time has now come to convert India's strength and progress in IT into creation of innovation-based products and services. It is one thing to create customized processes for businesses and it is completely another thing to create a branded product that can be used by businesses universally.
The government's ambitious plan to promote innovation is a step in the right direction. However, the patent office does not think so. The recent guidelines of the patent office for Computer-Related Inventions (CRIs) seem to ignore the entire effort of the PM to promote startups.
Let's understand the issue. IT companies in India like TCS, Infosys and Wipro, which were initially doing customized work for foreign businesses, have now started innovating their own products. Patent filing by just these three companies has increased dramatically in recent times (92 in 2008-09 to 311 in 2013-14, an over 3-fold rise).Apart from big businesses, most startups work in the area of Computer-Related Inventions and not in the area of novel hardware. This is India's prowess area. But the patent office is out to kill the goose laying the golden eggs.
While India amended its patent law post TRIPS, it was looking at the question as to whether software patents should be granted or not. The Patent (Amendment) Bill had a provision which completely excluded business methods, computer programmes and algorithms from patenting.By that time, Indian software engineers had already started making their mark in the IBMs of the world. The US was granting patents to computer programmes but Europe had found a middle path. In Europe, it was felt that codes “as such“ should not be given patents as software is protected under copyright. However, whenever software produces an effect on the hardware or makes a technical contribution then they ought to be granted patents.
Thus, in Europe the law was developed to grant pa tents to such softwares, which had a technical effect or a contribution. Thus, in Europe what was excluded from patentability was “programmes for computers as such“. In India, the Patent (Amendment) Bill, 2002 had a clause which excluded computer programmes completely from patentability . However, when the matter was referred to the Parliamentary Committee, several presentations were made and experts had deposed before the Joint Parliamentary Committee.After collecting the views of several experts, the final Act passed by Parliament excluded from patentability only the “computer programmes per se“. Thus, India decided to follow the European model.Recent judgments emanating from the US courts, including the US Supreme Court, show a trend towards acceptance of this position even in the US.
After extensive stakeholder consultations, the patent office issued guidelines in 2015 with respect to Computer-Related Inventions. The guidelines were published in August 2015 and were acceptable to most stakeholders.However, the Controller General of Patents put the said guidelines in abeyance and has published new guidelines in February 2016. The new guidelines set out several examples of “how not to grant patents“ and not “how to grant them“. This is seen as a completely anti-innovation move by the industry as these new guidelines were based on the representation of an NGO -Soft ware Freedom Law Centre based in the US -that had advocated complete blanket exclusion of computer programmes from patentability . Unfortunately , it appears that the step was taken by the patent office in a knee-jerk fashion.
The startup India initiative of the government is likely to face enormous obstacles if there is a blanket ban on any computer programme-related invention from being patented unless they have a novel hardware. Most products and services, which are launched today whether it's a washing machine or a spacecraft or an auto-geared car, have computer programmes built into them. All these programmes have technical contribution to the product whether it is the case of Mangalyaan or a simple washing machine or a smartphone. The product by itself may not be novel.
In today's day and age, to take a position that Computer-Related Inventions would be completely barred from patentability would be a regressive step. Software has a pan-industry applicability .Without computer softwares or programmes, innovation is impossible.
The Controller General of Patents appears to have acted in haste while publishing the new guidelines. There is a threat that the entire Startup India initiative could be jeopardized if this stand of the patent office is not reversed.The low grant of patents to Indian companies in the field of computers is, in fact, a reason why patents in this area should be encouraged. The percentage of Indian companies that have a share in Computer-Related Inventions cannot be increased if the new guidelines are followed.
The patent office ought to work in tandem with other initiatives of the government like Startup India. While the initiative is promising, other departments of the government ought to support it by taking positive action for implementation of the initiative.
The finance minister Arun Jaitley has recently announced that the rate of taxation on global royalties arising out of patents developed and registered in India would be 10%. This is a huge encouragement for businesses to do research and apply for patents in India. But if those patents are never going to be granted, all the major initiatives will be a failure. The government and its various agencies need to speak in one voice if these initiatives have to succeed.
Implementation of the new guidelines would sound the death-knell of innovation in India.
Times of India, New  Delhi, 17th March 2016

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