A comparative analysis of Global players
Ankit Kumar Singh
The practice of granting monopolies by patent has a long history of over 600 years. The term patent can be traced to the term Letters Patent, a grant in the form of a document rolled up with the King’s or Queen’s seal appended at the bottom, conferring certain rights and privileges on an individual. The grant was not sealed or closed but it was open to public. Though letters patent were granted for various purposes, they were most often granted to inventors, and hence the word ‘patent’ was eventually used to describe the inventor’s monopoly. It only excludes others from practising his invention without his permission. The patent system achieves this goal by granting limited exclusive rights to inventors in return for public disclosure of inventions that would encourage scientific and technological advancement. An invention is the creation of a new technical idea and of the physical means to accomplish or embody it. Thus, there must be a concept and a way of putting the concept into some practical form. An unimplemented idea is not patentable. Software is a set of interacting programmes. Each programme is a sequence of instructions written in a well-defined language, encoding operations, processes or algorithms applied to data in the broadest sense. The programme is initially written in a programming language understandable to professionals. At this stage, it is in the form of ʺsource codeʺ, which permits the development and production of a software product. Once written, this sequence of instructions can be compiled, which means translated and transformed into a binary sequence (of 1s and 0s) signalling the presence or absence of an electric impulse, comprehensible for a machine, but no longer to a human mind. It is then in the form of an ʺobject codeʺ or binary code. In simple words, a computer program, or software, is a “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” A software-related patent is a “patent that claims as all or substantially all of its invention some feature, function or process embodied in a computer program that is executed on a computer.” A major subject of debate is whether software alone, not in combination with other physical elements or steps, should be, or is, patentable.
B. Arguments in Favour of Patenting:
Although software exists as written text, both as source and object codes, unlike other copyrightable subject matters, its primary purpose is not that they be read by human beings. Rather, software, at least in object code form, is written for the purpose of performing functional tasks. Computer software, in conjunction with the computer, carries out the particular task or set of tasks itself. In short, software is a functional work of technology. Historically, patent protection has always been available for functional subject matters. Patent protection of computer software is that a patent can protect a concept underlying the computer program, and thus would promote the development of the software industry and computer-related industry. Software provides a set of instructions that allow a machine to indicate, perform or achieve a particular function, task or result. In that sense, both hardware and software exhibit technical behaviour.
Since software invention requires considerable investment of time and money, it should be protected. Given the limited ability of copyright to protect the valuable functional aspects of software such as behaviour and structure, sequence, or organization, second comers could simply copy these aspects either directly from the source code or by decompiling the object code. These kinds of practices diminish the real value software and deprive the original developers of the ability to recoup their development costs and from earning money from their inventions. Therefore, the prospect of obtaining an exclusive right to practice and/or license an invention under patent protection gives inventors important financial incentives to invest time and resources in developing new inventions.
The reward in the shape of a patent serves as an incentive to innovators, as it can be argued that developers need means to recuperate their investment. In other areas of innovation, patents have encouraged substantial investment in research and development and have generally promoted innovation. Software development is a vibrant area of innovation, despite the uncertain nature of its legal protection. The success of open source software also serves to diminish the claim, as there is a field of endeavour where thousands of developers innovate without the incentive of patent protection. If a computer program contains elements that meet patentability requirements, it should be awarded software protection. Since software development is a technical field like any other its results should be patentable. Effective protection of the software industry is an economic necessity. Over the few past decades, the software industry has achieved a substantial growth rate which continues to grow unabated. Countries that want to increase or at least to sustain investments in this sector should provide effective protection mechanisms for these technologies.
C. Arguments against Patenting:
Computer programs are already protected by copyright, and thus it is not necessary to provide any other titles of protection. Smaller software developers would not be able to enjoy expensive patent protection, and would be put in a position to pay royalties to patents owned by big corporations. Computer software is actually an algorithm or a mathematical formula. An algorithm is a series of steps to solve a problem and computer program is an implementation of that algorithm, which is like an implementation of mathematical equation. Granting patents for mathematical algorithms would preclude others from performing the same process. So like mathematical algorithms, computer programs should not be patented.
Exclusive rights granted by patents diminish competition by creating monopolies in the market. On the other hand, exclusive rights conferred by a patent owned by small and medium enterprises would strengthen their market position and negotiation power with the possibility to license or assign patents. Patent protection of computer programs would inhibit competition in this field due to the characteristics of software innovation. It is said that software innovation typically involves cumulative, sequential innovation and re-use of others’ work. To a certain extent, this is an inevitable and permitted consequence of the patent system. However, the fact that the software industry has a natural tendency towards monopolies as a consequence of the need for standardization, allows software patents to have a further effect on monopolization in the sector.
Software patents encourage the creation of the so-called ‘patent thickets’: a dense undergrowth of interrelated patents that researchers have to navigate in order to develop new technologies. There are two different types of thickets. The first one is a single technological innovation that may be protected by several patent holders. This situation would require anyone interested in developing software in that area to obtain separate licences from numerous owners. The second type of thicket occurs when a product is covered by a large number of patents, not just one. Patent thickets increase the cost of innovation, they encourage inefficiency through the creation of complex cross-licensing relations between companies, and they may even stop newcomers entering the market if they fail to penetrate the thicket. However, at least one commentator takes issue with critics of patent thickets: even where thickets exist, they have no effect on innovation through research and development spending.
D. Protection of Softwares:
a) International Perspective:
The most common systems for protecting computer software are: Copyright, Patents, and Trademarks. Copyright protects the expression of an idea in a tangible (material) form. The recent Copyright Treaty by the World Intellectual Property Organization confirms that computer software is to be protected by copyright as a literary work throughout the world. Literary works, such as books and poems, have traditionally been expressed in a written form which is readable to humans. With regards to software, both the source code (human readable form) and object code (machine readable form) qualify for copyright protection. Patents protect the underlying ideas of a product which has commercial value in industry. Computer software incorporates ideas in the form of algorithms and data structures. These ideas can be protected by patents if proven to be innovative enough and of commercial value. Trademarks protect the name that uniquely distinguishes a company or product from the rest. Trademarks are available in regards to computer software in software names and software company names.
In particular, prior to the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the status of computer program protection was undefined under the Paris Convention, which regulates global patent rights, and was controversial under the Berne Convention, which regulates the worldwide copyright regime. The TRIPS Agreement places computer programs under the copyright section by stating that “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention.” Furthermore, TRIPS mandates that all member states create an adequate judicial and administrative enforcement mechanism and provide a dispute resolution mechanism not only for the protection of computer programs but all intellectual property rights.
Despite the TRIPS Agreement, the question of whether or not computer programs can be patented has not been solved. Article 27 of the agreement states that “… patents shall be available for any inventions…in all fields of technology, provided they are … capable of industrial application.” While the second and third paragraphs of the same article allow member states to exclude from patentability some categories such as medical treatment, or inventions dangerous to health or environment, it makes no mention of computer programs. By not commenting on the viability of software patents, TRIPS leaves this decision to the individual signatories. However, even the developed countries differ as to whether computer programs should be patentable, and if so, which limitations should apply.
b) United States:
The U.S. Code defines inventions that are the proper subject matter of U.S. patents as follows: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” Not all “inventions” are patentable in the U.S. because neither a mathematical formula nor an algorithm for making mathematical computations or conversions can be patented. Nevertheless, the U.S. Supreme Court also excluded “laws of nature, natural phenomena, and abstract ideas” from patent protection. Before 1981, the United States Patent and Trademark Office (USPTO) treated computer programs and inventions relating to computer programs as mathematical algorithms or abstract ideas and did not grant patents. Attitudes towards software patents have changed significantly following Diamond v. Diehr, in which the Supreme Court stated that a patent claim could not be denied solely because the invention uses “…a mathematical formula, computer program, or digital computer.” An idea in and of itself is also not patentable. The implication is that any mathematical procedure is akin or identical to a law of nature, which leaves doubt as to whether any computer-implemented inventions are patentable.
Following the decision in In re Freeman, the U.S. Patent and Trademark Office (“USPTO”) applies a two-step test—which was further refined in In re Walter and in In re Abele —to determine whether a particular invention is patentable. The first step is a determination of whether the patent claim describing the invention recites elements or steps that are themselves mathematical algorithms. If a mathematical algorithm is not present, patent protection may be the proper vehicle of protection if the other statutory requirements are met. If a mathematical algorithm is present, a second step attempts to determine whether the claim reciting the mathematical algorithm relates or applies, in a non-trivial fashion, the algorithm to physical elements or process steps, so that the claim as a whole must be analyzed.
In 1981, the U.S. Supreme Court clarified that computer technology should not be treated differently from other technologies under the patent law and that inventions involving a computer program can be the proper subject matter for protection by U.S. patents. Furthermore, the Federal Circuit in In re Alappat held that software has the power to convert a general purpose computer into a special purpose machine, which constitutes patentable subject matter. Today, the U.S. grants patents for a wide range of computer software-related inventions provided that they produce “concrete, useful and tangible” results.
Traditionally, software has been protected by copyright and excluded from patent protection in Europe. Article 52(2) of the European Patent Convention excludes “schemes, rules and methods for performing mental acts, playing games or doing business, and programming computers” from patentability. These exclusions are made for abstract and intellectual mechanisms, as opposed to useful tangible products or processes. Despite this language, however, patents covering computer software have been granted pursuant to decisions of the European Patent Office Board of Appeal. The panels in those cases interpreted Article 52(2) in light of other provisions of the Convention, including Article 52(3), and concluded that while computer software and business methods cannot be patented as such, they can be patented on the basis of the technical effects produced by the software or method. Over the last fifteen years the Technical Board of Appeal of the European Patent Office (“EPO”) has tried to get over this obstacle, almost even to the point of undermining the clear intent of the entire European patent system, but it is still shackled by its current provisions.
On Aug. 31, 2001, the European Patent Office issued new guidelines with respect to the patenting of computer programs and business methods. The purpose of these amendments was to confirm the guidelines to the aforementioned European Patent Office Board of Appeal decisions concerning the patentability of business methods and computer-related inventions and with current European Patent Office practice on examining such subject matter. Under the 2001 amendments, the European Patent Office, as it had in the past, relied on language in Article 52(3) of the Convention and language in Rules 27 and 29 of the Convention’s Implementing Regulations to issue computer software patents. Under the revised, current guidelines, the European Patent Office may, assuming all other requirements are met, grant a computer software patent provided it is of a “‘technical character’ to the extent that it must relate to a technical field, concern a technical problem, and have technical features in terms of which the matter for which protection is sought can be defined in the claim.” Accordingly, although computer programs per se are not patentable, under the guidelines, “if a computer program is capable of bringing about, when running on a computer, a further technical effect going beyond … normal physical effects, it is not excluded from patentability, irrespective of whether it is claimed by itself or as a record on a carrier.” It is clear that the existing procedure is well established in favour of some limited patentability of software, even after the defeat of the Directive. European Commissioner Benita Ferrero-Waldner has pointed out that, despite the vote, ‘patents for computerimplemented inventions will continue to be issued by national patent offices and the European Patent Office under existing law’.
Under Article 2(1) of the Japanese Patent Law, computer software, like all other inventions, is patentable if it is a highly advanced creation of technical ideas by which a law of nature is utilized. In February 1997 the Japanese Patent Office issued its Implementing Guidelines for Computer Software-Related Inventions, published, in part, to “adequately protect software related inventions by clarifying that ‘computer-readable media recording computer programs’ ” may constitute statutory subject matter. Just three years later, in 2000, the Japanese Patent Office issued revised Examination Guidelines for Patent and Utility Model in Japan, which included Computer Software-Related Inventions. Under these lengthy guidelines, the Patent Office sought to address the issues raised concerning the patentability of software-related inventions that are not necessarily recorded on computer-readable media (i.e., Internet-related inventions), as well as the patentability of business methods. Its purpose was to, among other things, achieve consistent decisions among patent office examiners and efficient implementation of the patent and utility model laws.
Under the Indian law, computer programmes are protected under the Copyright Act, 1957; they are not entitled to protection through patents. The law relating to patents in India is governed by Indian Patents Act, 1970 as amended by Patents (Amendment) Act, 1999 and Patents (Amendment) Act, 2002, which came into force with effect from May 2, 2003. Section 3(k) of Patent Act, 1970“A mathematical or business method or a computer programme per se or algorithms are not patentable.” According to the Draft manual of practice and procedure :
4.11.1 A computer implemented invention mean any invention, the performance of which involves the use of computer, computer network or other programmable apparatus, or an invention one or more features which are realized wholly or partially by means of a computer programme/ programmes.
4.11.2 Computer programmes are a set of instructions for controlling a sequence of operations of a data processing system. It closely resembles a mathematical method. It may be expressed in various forms e.g., a series of verbal statements, a flowchart, an algorithm, or other coded form and maybe presented in a form suitable for direct entry into a particular computer, or may require transcription into a different format (computer language). It may merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it may be permanently recorded in a control store forming part of a computer.
4.11.3 If the patent application relates only to a machine i.e., hardware based invention, the best mode of operation may be described along with the suitable illustrations. However, in the case of a process related inventions, the necessary sequence of steps should clearly be described so as to distinguish the invention from the prior art with the help of the flowcharts. The source/pseudo/object codes may be incorporated in the description optionally.
4.11.4 In order to distinguish the invention from the prior art, relevant prior art is also required to be given in the specification. It is always essential to analyze the invention in the light of what is described and the prior art, in order to identify the contribution to the art and hence determine whether this advancement resides in, or necessarily includes, technological features and technical application or is solely intellectual in its content. A hardware implementation performing a novel function is not patentable if that particular hardware system is known or is obvious irrespective of the function performed.
4.11.5 Applications related to computer inventions may broadly fall under the following categories:
(c) Computer program product.
The following aspects should be looked into while dealing with such applications.
4.11.6 The method claim should clearly define the steps involved in carrying out the invention. It should have a technical character. In other words, it should solve a technical problem. The claims should incorporate the details regarding the mode of the implementation of the invention via. hardware or software, for better clarity. The claim orienting towards a “process/method” should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the “software per se” is differentiated from the software having its technical application in the industry. A claim directed to a technical process which process is carried out under the control of a programme (whether by means of hardware or software), cannot be regarded as relating to a computer programme as such.
For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable.
4.11.7 The apparatus claim should clearly define the inventive constructional hardware features. The claim for an apparatus should incorporate a “process limitation” for an apparatus, where “limitation” means defining the specific application and not the general application. As a general rule, a novel solution to a problem relating to the internal operations of a computer, although comprising a program or subroutine, will necessarily involve technological features of the computer hardware or the manner in which it operates and hence may be patentable. For example, in a computer comprising means for storing signal data and a first resistor for storing data, the clause starting with “for” describes the function or process carried out by the apparatus, and form the part of “process limitation” here.
4.11.8 The claims relating to software programme product are nothing but computer programme per se simply expressed on a computer readable storage medium and as such are not allowable. For example, if the new feature comprises a set of instructions (programme) designed to control a known computer to cause it to perform desired operations, without special adoption or modification of its hardware or organization, then no matter whether claimed as “a computer arranged to operate etc” or as “a method of operating a computer”, etc., is not patentable and hence excluded from patentability. The claim might stipulate that the instructions were encoded in a particular way on a particular known medium but this would not affect the issue. e.g., A program to evaluate the value of PI or to find the square root of a number are held not allowable. An invention consisting of hardware along with software or computer program in order to perform the function of the hardware may be considered patentable. e.g. embedded systems.
4.11.10 A mathematical method is one which is carried out on numbers and provides a result in numerical form (the mathematical method or algorithm therefore being merely an abstract concept prescribing how to operate on the numbers) and not patentable.
However, its application may well be patentable, for example, in Vicom/Computer-related invention  1 OJEPO 14 (T208/84) the invention concerned a mathematical method for manipulating data representing an image, leading to an enhanced digital image. Claims to a method of digitally filtering data performed on a conventional general purpose computer were rejected, since those claims were held to define an abstract concept not distinguished from a mathematical method. However, claims to a method of image processing which used the mathematical method to operate on numbers representing an image can be allowed. The reasoning was that the image processing performed was a technical (i.e. non- excluded) process which related to technical quality of the image and that a claim directed to a technical process in which the method used does not seek protection for the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.
4.11.11 The patent application No.558/DELNP/2005 related to method of operating the credential management processor. This was refused as it was found to be attracting the provisions of section 3(k) as the alleged method was relating to ‘receiving ‘, ‘de-referencing’ and ‘storing’ being purely a computer implemented software application. As well as the enhancement of security as claimed in method claims was already disclosed in the cited document and is obvious to a person skilled in the art.
Economists view patent protection as a trade-off between the need to encourage innovation and the necessary evil of allowing a temporary monopoly to the innovator. Although it is controversial, no one can deny the importance of software. There are those who argue that software is so fundamental that our society should not allow anyone to own it to the exclusion of others. Some are content to treat software as copyrightable literature, affording protection only to its expressive, but not its functional aspects. Some argue strenuously that the patent system, which has existed since the late eighteenth century, is outdated and cannot handle this new technology and that some different, sui generis, form of protection should be created for software technology. Others argue that the current patent system is working fine and that it will adapt to this new technology, just as it has done many times before. Failure of TRIPS Agreement to determine whether computer programs can be patentable or not and if so which limitations should apply, creates different application among the member states. The U.S. provides for the patent of computer software and even European Union provides for the patent in the Computer programmes if it has “Technical Effect”. On the lines of US, Japan also provides for the patent to the computer software. India too provides for the Patent of the Computer Program in the Hardware form, in spite of its express negation in Patent Act, 1970.