India’s patent office says no to software patents, again
Bengaluru: India’s apex patent office has said no to software patents in the guidelines for examining computer-related inventions, which were published on 19 February.
The patent office’s announcement follows its stay on the revised guidelines which were published last August. In the August version, the guidelines allowed the patenting of software which demonstrated technical advancement, and did not clarify what this meant, sparking concern from start-ups and software product lobbies. Subsequently in December, amid concerns raised by these stakeholders, it stayed the guidelines.
Patents are granted by the patent office according to guidelines that are revised periodically. Section 3(k) of the Patents Act, 1970, holds, “A mathematical or business method or a computer programme per se or algorithms are not patentable.”
In 2004, an amendment that suggested addition of “enhanced technology” software patents was rejected by both houses of Parliament, as they feared that this would be beneficial only to multinational companies (MNCs).
Traditionally, patents favour MNCs that have the financial means to file for and sue against patent infringement, and adversely impact small firms and start-ups, according to the Software Freedom Law Center (SFLC), a non-profit foundation that represents many of the world’s leading free software developers.
Thus, when in August, the new set of guidelines were ambiguous on the question of software patents, they were criticized for allowing the possible rise of patent trolls and viewed as a threat to the fledgling start-up ecosystem.
The argument was that since software is based on mathematics, algorithms and computer programmes, they may not be patented as they are expressions of abstract ideas, and that since software is anyway protected under copyright law, it need not be patented at all.
“The (February) Guidelines are in line with the Indian Patents Act and provide clarity for the examiners. This means that the Indian software industry continues to enjoy the freedom to innovate and is not shackled by irregular patents granted in the area of software,” said Mishi Choudhary, technology lawyer and executive director, SFLC India.
Not everyone agrees with those who argued against software patents.
Some product companies say patents are necessary to deter clone companies and give them incentives to try new things—the same argument that owners of patented drugs have against generic makers.