The patent is one of the types of Intellectual Property rights that exist. It grants protection of the patented article to the inventor for a certain period of time. Therefore, the monopoly on the production of that invention rests with the patent holder. The purpose of this system is to foster inventions by promoting their protection and use. According to the system, patents guarantee the property rights of the invention for which the patent has been granted.
Most of the case law on software patents emanates from the United States, considered to be the birthplace of software patents. It began with the landmark decision of the United States Supreme Court in Diamond v. Diehr, who ordered the patent office to grant a patent for an invention even if it used computer software. In a later decision of In Re Alapat No 92-1381 (Fed. Cir. Jul. 29, 1994) further clarified the position by allowing the patenting of inventions that can be implemented in hardware or software, provided that the patent application states that the invention is more than a mere mathematical formula. The first software patent granted is probably a patent for a “computer having fast and slow access storage, when programmed to solve a linear programming problem by an iterative algorithm…”, applied for in 1962 by the British Petroleum Company . The patent refers to the resolution of simultaneous linear equations.
In recent times there has been a lot of controversy in India as to whether software programs should receive patent protection or not. A software patent is generally defined as a patent that protects some technical programming. The software programs are protected by copyright. This has been expressly mentioned in section 2 (ffc) of the Indian Copyright Act, 1957.
By the Patents (Amendment) Ordinance, 2004, section 3(k) was introduced. This section declared
“(k) a computer program per se other than its technical application to industry or a combination with hardware.”
From the simple reading of the aforementioned section, the obvious conclusion is reached that computer programs received patent protection. But a careful reading of the section makes it clear that computer programs per se would not receive protection. Therefore, the protection could only be taken advantage of when a computer program was also combined with some hardware. However, there was a controversy that came to an end only when the section in question was removed by the Patent Amendment Act of 2005.
Now there are two sides to this problem. On the one hand, allowing patent protection on any kind of computing seriously harms and hampers the creativity, productivity, and freedom of software developers while writing code. The key advantage in using computer programs is that the logic can be rewritten without physically rewriting or modifying the hardware. Therefore, it is easy to rewrite, copy, improve, and modify computer programs. A good example of such use is the Operating System called Linux. There are numerous types of Linux like Red Hat Linux, Sussex Linux to name a few. These have been developed due to code additions and subtractions to the original program.
The software is complicated. It is a huge computer program and cannot be understood by one person. Simply because of its complexity, it relies on a wide range of software technologies. Major computer code can comprise between 100,000 and 10 million lines of code. Software technology is evolving rapidly. Therefore, it is difficult or impossible to produce new products in the software industry without violating numerous patents. A good example is when the patent on data exchange standards forced another programming group to introduce an alternative format. PNG format was introduced to avoid GIF patent issues and Ogg Vorbis format was introduced to avoid MP3 patent issues. Finally, obtaining patent protection for any invention, including software, is relatively expensive.
On the other hand, there are high costs involved in software research and development, which has been one of the reasons for the increasing number of patent applications for software. Copyright law protects only the expression of an idea, while patent law also protects the underlying idea as long as the idea is not so fundamental that it does not fall within the categories of patentable subject matter. Also, as software products are marketed en masse without a signed license agreement, the strong protection provided by patent laws is becoming more important. Finally, a patent issued for software may prevent others from using a certain algorithm without permission, or it may prevent others from creating software programs that perform a function in a certain way.
In conclusion, patents and copyrights form complementary means to protect software innovations. Patents cover the underlying methodologies embodied in a given piece of software about the function that the software is intended to perform, regardless of the particular language or code in which the software is written. Copyright protects against direct copying of part or all of a particular version of a particular piece of software, but does not prevent other authors from writing their own realizations of the underlying methodologies. India has made great strides in the field of intellectual property rights. But it still takes time for the country to reach a stage where software patenting is acceptable.
Verghese Mathews
