Computer Software Amendment 1980

Leveraging Through Software Patents

 

Advantage over software patents

 

Patentability of Software

The question of whether software is patentable dates back to the early 1970. United States Patent and Trademark Office (USPTO) has historically been reluctant to grant patents on software-related inventions. His reasoning was that patents could only be granted to processes, machines and articles of manufacture and composition of matter. Patents can not be granted to scientific truths or mathematical expressions of it. The USPTO see computer programs and inventions containing or relating to computer programs as simple mathematical algorithms, and not processes or machines.

In the 1980 the U.S. Supreme Court forced the USPTO to change its position. Diamond v. Diehr, decided in 1981, provided the first instance in the U.S. Supreme Court ordered the USPTO to grant a patent on the invention related to software. In this case, the invention relates to a method for determining how rubber should be heated to be the best "cured." The invention uses a computer to calculate and control the heating time for the rubber. However, the invention (as defined in the claims) included not only the computer program, but also include measures for heating rubber, and rubber removal from the heat. The Supreme Court in this case, the invention was not just a mathematical algorithm, but it was a rubber molding process, and therefore was patentable. This was true even though the only "novel" feature of this invention was the synchronization process is controlled by computer.

In the 1990's, the Collegiate Court Circuit in the United States, which is the highest court in Patent other than the Supreme Court stated that if the invention uses the computer to manipulate the numbers representing specific values of the real world (for example, a program that interprets electrocardiogram signals to predict arrhythmia or a program that analyzes seismic measurements), then inventions relating to real world concepts is patentable.

In 1995, the USPTO decided it was time to develop guidelines for patent examiners to reflect these recent court decisions. After the release of draft guidelines for comment, the USPTO adopted guidelines for USPTO examiners to determine when a software related invention is statutory and therefore patentable.

Patent protection in relation to copyright in relation

Bitlaw a global website on Intellectual Property provides that the main benefit of the protection of software computer through the patent system is the strength of protection provided by patent laws. The patent owner can prevent others from making, using, or selling the patented invention. In connection with software, a patent issued may prevent others from using a particular algorithm (eg algorithm GIF image compression) without permission, or it may prevent others from creating software programs that perform a function in a certain way.

By otherwise, the copyright can only prevent the copying of a particular expression of an idea. In relation to software, copyright can be used to avoid duplication of an entire software program and a copy of a portion of software code (both of which are examples of "infringement literal "). In addition, copyright does not provide any protection against the violation is not literal, as the duplication of some screen, and creating of "cloning" software. However, recently the courts have been reluctant to interpret the protection of copyright of computer software so wide. In addition, the basic principle of copyright is that copyright will protect only the expression of an idea, not the idea itself. Consequently, the right Copyright does not preclude the creation of a competition program that uses the same ideas as an existing program.

Need for patent protection

In recent years, the United States Patent and Trademark Office (USPTO) has awarded a rapidly growing number of patents for software-related inventions computer.

In recent years, the United States Patent and Trademark Office (USPTO) has awarded a rapidly growing number of software patents related inventions. According to the Institute of Software Patents in the United States, thousands of "real software patents" are published every year, covering areas such as business software, expert systems, compilation of the functions, operating techniques and system editing functions. At the same time, software technology has moved on, using combinations of previous developments to create new goods, services and production processes.

Regardless of opinion on the question of whether software-related patents are good or bad for society, is no less true that a number growing software companies are filing patent applications related to the software every day. This creates a need for software companies to start to develop programs and procedures to protect their intellectual property through the patent system.

India is emerging as a world leader in the field software technology. The IT software and services industry in India grossed annual revenue of Rs. 37,760 crore (U.S. $ 8,260,000,000) during 2000-01, according to the annual industry survey published by the National Association of Software and Services Companies (NASSCOM), the main body of software, trade electronic services and IT industry in India.

Mr. Phiroz Vandrevala, President, NASSCOM, while the release of the highlights NASSCOM survey said, "the highlight of 2000-01 was interesting that one in four global giants outsourced their" mission-critical needs software to India. "Mr. Phiroz Vandrevala also said:" The software industry in India still requires moving faster on the scale of the chain value and become more involved in strategic consulting, brand management, research and development and providing more Web-based and the type of trade electronic interactive services to customers. "

Hence the need to protect our intellectual property rights once heartfelt India's software industry is well on its way towards creating a niche as a developer of software products mature high technology.

Protection Legal

The Patent Act of India in 1970 does not explicitly exclude software patents. Section 2 (1) (j) of the Patents Act the India of 1970 defines the term "invention" as any new and useful

i) art, process, method or manner of manufacture;

ii) machine, apparatus or other article;

iii) substance produced by manufacture

According to the current legal interpretation the above definition of the invention, patentable subject matter as well as being novel and useful, it must be on the manufacturing and it must result in a non-living things and tangible. From this explanation, we can infer that the software, as such, in the form of a mathematical algorithm can not be a patentable subject matter, as no this is the way of manufacturing and does not translate into something tangible.

This situation changes when software is combined with a machine / computer and machine / Under the influence of computer software, machine becomes a "novel" or the computer and it becomes patentable.

Contrary to popular belief that software-related patents are not permitted by the Patent Office in India, there are several cases where software patents in question have been granted by the Patent Office in India. An example is the patent granted 176,178 software unrelated to IBM, USA for "System for creating a program implementation of the package "by the Patent Office in India.

Proposed Law Changes

The Patents (Second Amendment) 1999 to the Patents Act of India, 1970 has been brought to light the TRIPS Agreement and that the law of modern legislation, harmonized and easy to use. But as regards to software patents are concerned, the proposed amendment of the act can be considered as a step backwards which explicitly excludes software from patentability.

This becomes evident if we consider the matter is not patentable, which have been included specifically through the addition to Section 3 (Patent of India , 1970), which is not patentable inventions. The bill, among other unpatentable subject matter excluded "a mathematical or business method or a program computers or algorithms "from patentability.

Once these changes are affected by law, software patents will be impossible in comparison with the legal position in India's Patents Act does not explicitly excludes computer programs from patentability.

By leveraging through patents

Among companies with patent portfolios, it is common practice for companies to provide leave for one or more patents of its own when accused of infringing a patent owned by another company. Through this practice the patent assets of both firms increase.

software companies small and medium businesses can benefit from software patents to reap profits by licensing their patents to large corporations. Of Indeed, the lack of patent protection makes it easier for large firms to copy ideas of independently developed software for small and medium software companies.

Therefore, software companies should start assessing the best internal procedures to identify potential ideas patentable and pursue patent protection for these ideas. Since patent applications related to software are often relatively expensive and time consuming, appropriate business decisions should also be made to support that effort.

Urgent Needs

Although provisions to patent in some form in the Patents Act of India, we must also address the procedural realities of the Patent Office in India. The facilities at four branches of the Office Patents in India must be strengthened so that the examiners are able to conduct an effective search while deciding the novelty and inventiveness of the programs related inventions. The Patent Office should have an examiner's manual, as in the USPTO, with clear guidelines on the patentability of software related inventions. Examiners offices in four branches of the Patent Office in India should be fully familiar with the technical aspects of software related inventions. Also a unit of raising should be thrown with force to make the software benefits of the Great Story of India's software!

Bibliography

1. Dr. Prabhudda Ganguli – "Preparing for patents – The scenario in India, Orient Longman, 1998
2. Ajit Parulekar and Sarita D'Souza – Law Patents in India: Legal and Business Implications, 1 st Edition 2006
3. Intellectual property rights journal World Patent Information "Published by Elsevier Science Ltd, UK
4. Patent Law Manual, 1st Edition, 2005
5. Website: www.patentmatics.org

About the Author

Harsh Vardhan Jajodia, has a hobby of writing articles on upcoming legal issues that prevail around.

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