The notion of “intellectual property” in India during the last few years has had on a number of epic proportions for a range of reasons. An example of the principal factors, attributable to the expanding awareness of all the urban Indian public, is of the significance and also, much more notably, the commercial advantages in protecting its intellectual property rights both within and outside India. And under traditional principles of intellectual property protection, patent law is almost always to encourage scientific research, industrial progress and new technology. The essential principle of patent law is the fact that the patent is granted only for an invention i.e. innovative and useful the said invention needs to have novelty and utility. The grant of patent therefore becomes of manufacturing home and in addition called an intellectual property. And the computer program is a fairly new recipient of patent protection.
The term “Patent’ has its beginnings from the phrase “Letter Patent’. This particular expression’ Letter Patent’ designed open letter and were devices under the Great Seal of King of England addressed by the Crown to all the topics in particular where the Crown conferred particular rights and privileges on a single or even more men and women in the kingdom. It was in the later portion of the 19th century new inventions within the field of art, process, manner or method of manufacture, machinery and various other substances produced by companies were on improved and also the inventors became a lot interested that the inventions performed by them should not be infringed by anyone else by duplicating them or perhaps by following the techniques utilized by them. In order to save the passions of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.
With value to patentability of program related inventions, it’s presently one of the most heated parts of debate. Software has become patentable in the past few years in most jurisdictions (although with restrictions in specific countries, notably those signatories of the European Patent Convention or epc) and The number of a software application patents has risen quickly.
MEANING OF SOFTWARE PATENTING
The term “software” doesn’t have a precise definition and even the software industries isn’t able to make an unique definition. But it is basically used to describe every last bit of many types of computer programs. Computer programs are generally divided into “operating system and “application programs” programs”. Application programs are supposed to do certain jobs being performed through the computer as well as the operating system programs are used-to manage the internal functions of the laptop to facilitate use of application program.
Though the term’ Software patent’ doesn’t have a universally accepted definition. One definition proposed by the Foundation for a free Information Infrastructure is the fact that a program patent is a “patent on any overall performance of a computer realized by means of a pc program”.
Based on Richard Stallman, the co developer of the GNU-Linux operating system plus proponent of Free Software states, “Software patents are patents which often make up program strategies, suggestions which you will use in building application.
That is Software patents refer to patents that may be granted on processes or products (including methods) which include or even may include software as a significant or even at least necessary part of their implementation, i.e. the form where they’re put in practice (or perhaps used) to create the effect they plan to provide.
Early example of a program patent:
On 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was sent in. The innovation was worried about efficient memory management for the simplex algorithm, as well as could be applied by purely software means. The patent was given on August seventeen, 1966 and seems to be on the list of first software patents.
CONCEPTUAL DIFFERENCE BETWEEN COPYRIGHT AND PATENT
Software has traditionally been protected under copyright law since code fits with ease to the explanation associated with a literary work. Hence, Software is shielded as works of literature under the Berne Convention, and any software program written is automatically protected by copyright. This allows the creator to prevent one other entity from copying the system and there is customarily zero need to register code for it to get copyrighted. While Software Patenting has recently emerged (if only in the US, Japan and Europe) where, Patents give their owners the perfect to prevent others from utilizing a claimed invention, even if it was independently put together and there was no copying involved.
In addition, it must be noted that patents cover the underlying methodologies embodied in a given piece of software. Though don’t prevent other authors from writing their own embodiments of the primary methodologies, on the other copyright prevents the direct copying of software.
The difficulties linked to conferring patent rights to software program are, nevertheless, a good deal more complex than taking out copyrights on them. Precisely, you’ll find 2 obstacles that one encounters when managing software patents. The first is about the instrument of patent itself and whether the way of shield it confers is best for the software industry. The 2nd is the dynamics of software program, and whether it ought to be at the mercy of patenting.
Nevertheless, concerns involved in conferring patent rights to program are a whole lot more complicated than removing copyrights on them. Precisely, you’ll notice two challenges that one encounters when managing software patents. The first is about the instrument of patent itself and whether the manner of shield it confers is suitable for the software industry. The second is the design of software and whether it should be subject to patenting.
a) Different Subject Matters
Copyright protection extends to other initial literary works (among them, computer programs), dramatic, artistic and musical works, including films. Under copyright, safety is included and then the actual expression of an idea which was adopted and not the concept itself. (For instance, a program to include numbers composed in two different computer languages would count as 2 individual expressions of just one concept) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright.
Generally patents are conferred on any’ new’ and’ useful’ art, process, manner or method of manufacture, magnetic energy generators, appliances or some other articles or substances produced by manufacture. Globally, the mindset towards patentability of software has been skeptical.
b) Who may claim the right to a patent /copyright?
By and large, the author of a literary, artistic, musical or dramatic work automatically becomes the master of its copyright.
The patent, on another hand is given to the first to apply for it, no matter who the very first to invent it had been. Patents cost a great deal of cash. They cost a lot more paying the lawyers to produce the application than they cost to really use. It takes usually several years due to the application being viewed, although patent offices do an incredibly sloppy task of considering.
c) Rights conferred
Copyright law gives the owner the exclusive to reproduce the material, perform, issue copies, adjust and translate the task. Nevertheless, these rights are tempered by the rights of considerable use which exist to the public. Under “fair use”, certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. In addition, independent recreation of a copyrighted work would not constitute infringement. Thus if the same plot of code were independently created by two different companies, neither would’ve a claim against the other person.
A patent confers on the proprietor a total monopoly and that will be the right to prevent others from producing, using, offering on the market without his/her consent. Usually, patent protection is a far more powerful approach of safety than copyright because the protection extends to the grade of the thought embodied by a software and injuncts ancillary uses of an invention too. It will weaken copyright in software which is the base of just about all European software development, because impartial creations protected by copyright is attackable by patents. Lots of patent applications cover really small and specific techniques or algorithms which are used in a number of programs. Frequently the “inventions” mentioned in a patent application were independently formulated and are already in use by other programmers if the program is filed.
d) Duration of protection
The TRIPS agreement mandates a period that is at least 20 years for a product patent and fifteen years in the case of a process patent.
For Copyright, the arrangement prescribes a minimum period of the lifetime of the writer plus seventy years.
JURISDICTIONS OF SOFTWARE PATENTING
Substantive law with regards to the patentability of software program and computer implemented inventions, and case law interpreting the legal provisions, will vary under various jurisdictions.
Software patents under multilateral treaties:
o Software patents under TRIPs Agreement
o Software patents under the European Patent Convention
o Computer programs and the Patent Cooperation Treaty
Software patenting under TRIPs Agreement
The WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), especially Article 27, are subject to debate on the international legal framework for the patentability of software program, as well as on whether software program and computer implemented inventions should be thought as an area of technology.
Based upon Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all areas of technology, provided they’re modern, involve an inventive step and are able to industrial application. (…) patents shall be accessible and patent rights enjoyable without discrimination regarding the location of invention, the field of technology and whether goods are imported or perhaps locally produced.”
Nonetheless, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the computer-implemented business methods, and software information technology remains unsure, since the TRIPs contract is subject to interpretation.
Software patents under the European Patent Convention
Within European Union member states, the EPO along with other national patent offices have released a lot of patents for inventions involving software program since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program “as such” (Art. 52(3)). This has been translated to suggest that every innovation which tends to make a non obvious “technical contribution” or solves a “technical problem” in a non obvious way is patentable even when a computer system is utilized in the invention.
Computer-implemented inventions that only solve a business problem using a laptop or computer, instead of a technical difficulty, are considered unpatentable as missing an inventive step. However, the fact that an invention is useful in business does not mean it’s not patentable if what’s more, it solves a complex situation.
computer programs and The Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) is a worldwide patent law treaty, which in turn provides a unified procedure for filing patent applications to cover inventions. A patent application sent in under the PCT is called an international application or perhaps PCT application. Under the PCT, the international search as well as the preliminary examination are carried out by International Searching Authorities (ISA) as well as International Preliminary Examining Authority (IPEA).
Nevertheless, before we begin hailing the creation of a new era and equating the patenting of software in India it will be well worth our while to shoot a pause and examine the realities of a program patenting. We will accomplish this by looking at examples of countries where software patenting has turned into the purchase of the day, like inside the US and Japan.
The United States Patent and Trademark Office (USPTO) has traditionally not considered software being patentable because by statute patents are only able to be granted to “processes, devices, articles of manufacture, along with compositions of matter”. i.e. Particularly, patents cannot be granted to “scientific truths” or “mathematical expressions” of them. The USPTO maintained the placement which software was in effect a mathematical algorithm, and therefore not patentable, into the 1980s. This position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used computer software to ensure the correct timing when heating, or perhaps curing, rubber. Although the software was the major component of the device, additionally, it had other functions that related to real life manipulation. The court then ruled that as a device to mold man-made materials, it was a patentable object. The court basically ruled that while algorithms themselves couldn’t be patented, devices that used them could.
But in 1982 the U.S. Congress made a completely new court i.e the Federal Circuit to listen to patent cases. This court enabled patentability of software, to be taken care of uniformly throughout the US. As a result of a handful of landmark instances in this court, by early 1990s the patentability of software was more developed.
Furthermore, Several successful litigations reveal that software patents are enforceable in the US. That’s the purpose, Patenting software is now widespread in the US. As of 2004, about 145,000 patents had given in the 22 classes of patents covering pc implemented inventions.
Software is specifically patentable in Japan. In various litigations in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita won a court order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 covering word processing application.
With respect to computer applications, in Patents (Amendment) Act, 2002, the range of non patentable subject matter in the Act was amended to add the following: “a mathematical method or a business method or a computer program per se or perhaps algorithms”.
But, the latest amendment modifications (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after getting assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in synthetic drugs as well as agro chemicals, among the seminal amendments this Ordinance seeks to bring may be to permit the patenting of inserted software program.
Thus, the amendment implies that while a mathematical or a business method or an algorithm cannot be patented, a computer programme which includes a technical software in any sector or that could be integrated in hardware may be patented. Since any commercial software program has several industry application and all apps can be construed as complex applications, obviously it opens all the software patenting.
In any case, any company searching for to file a patent application for a software application under the Ordinance should ensure that its invention first of all, follows the 3 fundamental tests:
o Inventive Steps
Thus, it is essential that the software sought to be protected is just not merely a recent version or perhaps a development over a current code.
Additionally, in accordance with the exact needs of the Ordinance with regard to patentability of an application, the software should necessarily have a technical program to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future litigation or even claims of infringements being raised, and that is a distinct probability despite a patent is granted.
India for its part seems to have adopted the more traditional approach of the European patenting norms for a software application. But the Ordinance certainly has its relevance and use in modern India, especially for our growing domestic semi conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while enabling the market to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of actual innovations and inventions. This’s the reason a patent should be regarded as a “double edged sword”, to be wielded with sensitivity and careful attention.
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