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SOFTWARE PATENT Prof. Anurag K. Agarwal LL.M. (Harvard), LL.D. (Lucknow) Indian Institute of Management, Ahmedabad

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The amendments to the Indian Patents Act, 1970 introduced by a recent Ordinance which came into effect on January 1, 2005 has allowed all computer programmes to be patented. The Indian Patents Act, as modified in 2002, had made "a mathematical method or a business method or a computer programme per se or algorithms" non-patentable.

However, the recent amendment changes this phrase defining what cannot be patented to "a computer programme per se other than its technical application to industry or a combination with hardware, a mathematical or business method or algorithms." Since any commercial software has some industry application and these applications are technical in nature, it opens virtually all software to patenting.

A patent in the case of software grants monopoly control over not just the 'expression' of a function or idea in computer code, which could be covered by copyright, but over the very idea itself. Thus, software would be covered by both copyright and patents.

It all started in 1950s and early 1960s. With the growth of computer technology, the US Patent and Trademark Office (USPTO) started receiving a number of patent applications. The response of the USPTO was uniform: whatever software is, it is definitely not patentable subject matter. Some programmers persisted in their efforts to have software recognised as patentable subject matter. A few even obtained patents, but not for software per se. However, as the USPTO was unwilling to grant patents and the courts also had the same view, the programmers shifted the focus towards the legal mechanisms of trade secrets and copyright protection. But, the desire to have the patent protection to software did not die. It is interesting to note that the global community of scientists and technologists, at least in the U.S., gives greater recognition to patents vis-à-vis copyright. And, there are reasons for that - copyright arises the moment the work gets completed; there is no necessity by law to get it registered, however, patent is granted by the patent office, for which an application has to be made and complete procedure followed. Therefore, it is much more prestigious to get a patent. Not only prestigious, the economic rewards are also higher, generally.

The computer companies, therefore, continued to file applications claiming computer software in various forms. In the 1970s, most of these applications were not for what we think of today as "pure software", but instead for the use of special-purpose computers or programmes in a particular industrial environment. Some applications were successful as the courts differentiated "pure" claims to mathematical formulae from claims to inventions that implement or apply those formulae.

India had never allowed software patents, as was the case in the U.S. earlier. With the new law in India, the situation has changed. The path which India is going to tread is not going to be easy. We must realise that the U.S. has taken so many years to develop the law on software patent, the USPTO has made detailed guidelines for software patent and such issues have come before the courts again and again. The scenario in India is very different. It may not be wrong to say that our patent office, the judicial set up and the entire machinery involved in grant and protection of patents is at present not in a position to take this challenge. The legal fraternity may find it difficult to handle the number of disputes which may arise because of the grey area of software and its application. We need trained personnel to handle these issues at each and every step.

There is still a debate going on whether software needs patent protection or not. Richard Stallman, co-developer of the GNU-Linux operating system and proponent of free software, delivered a talk at IIM, Ahmedabad on February 12, 2005. He is of the opinion that as software patents cover software ideas, it makes them a dangerous obstacle to all software development. The argument against software patenting is that it will kill innovations, by leaving small firms or software developers liable for patent infringements. Stallman further says "That's like saying, be the greatest genius in history or don't even try".

This argument applies to, well, all things patentable, may be with slight changes. History tells us that research and development flourishes in countries having strong intellectual property rights. There is always the dilemma before the society between the good of the society and protection of intellectual property of an individual. For some time, one has to forget Jeremy Bentham's doctrine "greatest good of the greatest number" - but in one way protection of intellectual property helps the society in the long run. Thus, intellectual property is for the benefit of the society.

On the practical side, we have to do a lot of work. It is not easy to get a patent. It is a long process, which tests the inventors' endurance. With delay inbuilt in the judicial system in India, if the matter somehow reaches a court, the inventor may feel like forgetting the entire thing. He would, in all probability, rue the day when he filed the application for getting the patent. It is time to address to such issues rather than focus on the debate of having software patent or not.