August 13th, 2009 at 06:42pm
Under intellectual property
An Overview Of Software Patenting
The concept of “intellectual property” in India over the last few years has taken on some epic proportions for a number of reasons. One of the primary reasons, attributable to the growing awareness among the urban Indian population, is of the significance and, more importantly, the commercial benefits in protecting its intellectual property rights both within and outside India. And under traditional principles of intellectual property protection, patent law is to encourage scientific research, new technology and industrial progress. The fundamental principle of patent law is that the patent is granted only for an invention i.e. new and useful the said invention must have novelty and utility. The grant of patent thus becomes of industrial property and also called an intellectual property. And the computer software is a relatively new recipient of patent protection.
The term “Patent’’ has its origin from the term “Letter Patent’’. This expression ‘Letter Patent’ meant open letter and were instruments under the Great Seal of King of England addressed by the Crown to all the subjects at large in which the Crown conferred certain rights and privileges on one or more individuals in the kingdom. It was in the later part of the 19th century new inventions in the field of art, process, method or manner of manufacture, machinery and other substances produced by manufacturers were on increased and the inventors became very much interested that the inventions done by them should not be infringed by any one else by copying them or by adopting the methods used by them. To save the interests of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.
With respect to patentability of software -related inventions, it is currently one of the most heated areas of debate. Software has become patentable in recent years in most jurisdictions (although with restrictions in certain countries, notably those signatories of the European Patent Convention or EPC) and the number of software patents has risen rapidly.
Meaning Of Software PatentingThe term “software” does not have a precise definition and even the software industries fails to give an specific definition. But it is basically used to describe all of the different types of computer programs. Computer programs are basically divided into “application programs” and “operating system programs”. Application programs are designed to do specific tasks to be executed through the computer and the operating system programs are used to manage the internal functions of the computer to facilitate use of application program.
Though the term ‘Software patent’ does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a “patent on any performance of a computer realized by means of a computer program”.
According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents which cover software ideas, ideas which you would use in developing software.
That is Software patents refer to patents that could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e. the form in which they are put in practice (or used) to produce the effect they intend to provide.
Early example of a software patentOn 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The invention was concerned with efficient memory management for the simplex algorithm, and may be implemented by purely software means. The patent was granted on August 17, 1966 and seems to be one of the first software patents.
Conceptual Difference Between Copyright And PatentSoftware has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. While Software Patenting has recently emerged (if only in the US, Japan and Europe) where, Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.
Further, it should be noted that patents cover the underlying methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies.
The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting.
However, issues involved in conferring patent rights to software are a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patenting.a) Different Subject MattersCopyright protection extends to all original literary works (among them, computer programs), dramatic, musical and artistic works, including films. Under copyright, protection is given only to the particular expression of an idea that was adopted and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) 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, method or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical
b) Who may claim the right to a patent /copyright?Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright. The patent, on the other hand is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to actually apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.
c) Rights conferredCopyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by the rights of fair use which are available to the public. Under “fair use”, certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently developed by two different companies, neither would have a claim against the other.
A patent confers on the owner an absolute monopoly which is the right to prevent others from making, using, offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents. Many patent applications cover very small and specific algorithms or techniques that are used in a wide variety of programs. Frequently the “inventions” mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.
d) Duration of protectionThe TRIPS agreement mandates a period of at least 20 years for a product patent and 15 years in the case of a process patent. For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years.
Jurisdictions Of Software PatentingSubstantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions.Software patents under multilateral treaties:• Software patents under TRIPs Agreement• Software patents under the European Patent Convention• Computer programs and the Patent Cooperation Treaty
Software patenting under TRIPs AgreementThe WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are subject to debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.
According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (…) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”
However, 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 uncertain, since the TRIPs agreement is subject to interpretation.
Software patents under the European Patent ConventionWithin European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software 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 interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if a computer program is used in the invention. Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.
Computer programs and the Patent Cooperation TreatyThe Patent Cooperation Treaty (PCT) is an international patent law treaty, which provides a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international application or PCT application. Under the PCT, the international search and the preliminary examination are conducted by International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).
Current TrendHowever, before we start hailing the advent of a new era and equating the patenting of software in India it would be well worth our while to take a pause and examine the realities of software patenting. We could do this by looking at examples of countries in which software patenting has already become the order of the day, such as in the US and Japan
United StatesThe United States Patent and Trademark Office (USPTO) has traditionally not considered software to be patentable because by statute patents can only be granted to “processes, machines, articles of manufacture, and compositions of matter”. i.e. In particular, patents cannot be granted to “scientific truths” or “mathematical expressions” of them. The USPTO maintained the position that 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 curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could.
But in 1982 the U.S. Congress created a new court i.e the Federal Circuit to hear patent cases. This court allowed patentability of software, to be treated uniformly throughout the US. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established. Moreover, Several successful litigations show that software patents are now enforceable in the US. That is the reason, Patenting software has become widespread in the US. As of 2004, approximately 145,000 patents had issued in the 22 classes of patents covering computer implemented inventions.
JapanSoftware is directly 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 software.
Indian PositionWith respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”.
However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.
Hence, the amendment means that while a mathematical or a business method or an algorithm cannot be patented, a computer programme which has a technical application in any industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be construed as technical applications, obviously it opens all software patenting.In any case, any company seeking to file a patent application for software under the Ordinance should ensure that its invention firstly, follows the three basic tests:• Inventive Steps• Novelty• UsefulnessTherefore, it is important that the software sought to be protected is not merely a new version or an improvement over an existing code.Further, in accordance with the specific requirements of the Ordinance with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future litigation or claims of infringements being raised, which is a distinct probability even after a patent has been granted.
ConclusionIndia for its part seems to have adopted the more conservative approach of the European patenting norms for software. But the Ordinance definitely has its use and relevance in today’s India, particularly for our growing domestic semi- conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while allowing the industry to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of real innovations and inventions. This is the reason a patent should always be treated as a “double edged sword”, to be wielded with caution and sensitivity. Now whether, in reality this will be implemented on a rigid basis or will become broad in scope through application (as in the U.S.), and, more importantly, whether the Ordinance would, in fact, result in increased innovation and inventions in the software industry, remains to be seen.
harsh Vardhan Jajodia – my work is to bring to everyone’s notice the problems and latest issues faced by the people in the legal scenario.
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By Copyright Law
August 7th, 2009 at 06:41pm
Under copyright protection
To clear up confusion as to how to protect the Intellectual Property of websites, this article will give a brief explanation on how websites might be protected under Patent Law, Trademark Law, and Copyright Law.
The first concept to understand regarding Intellectual Property is the fact that patent law, trademark law, and copyright law overlap. It is possible to get a patent, a trademark, and a copyright on a bicycle. A patent can be applied for a unique braking system on the bike. A trademark can be created for a unique and non-functional look of the bike (and word marks). And a copyright can be extended to various graphics on the bicycle as well. The three pillars of intellectual property: patents, copyrights, and trademarks are no mutually exclusive.
As such, a website which incorporates a novel and non-obvious method or process can be afforded patent protection. One bad example is the Amazon 1-click patent. This is a bad example in the sense that the patent was probably improperly issued due to serious questions related to USC 103 which requires non-obvioiusness.
A website may also be able to qualify for trademark protection through various logos, words, colors, sounds, or other source identifiers which are placed throughout the website. A consistent look throughout the website pages can be given trademark rights. A closely related issue may be cyber-squatting which is actually covered under another narrow law.
And a website may also have copyright rights as well. Most websites have an assortment of images, articles, artwork, and other text which certainly comes under copyright law. Moreover, any software running on those websites may also qualify for copyright law through their source code and object code which may be registered with the Library of Congress.
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By Copyright Law
August 1st, 2009 at 06:40am
Under copyright infringement
There are many different types of attorneys that offer professional legal services. In the United States, attorneys-at-law are qualified to serve in court and outside of the court. This is not the case in all countries. For instance, in the United Kingdom, some lawyers appear in court cases while others work in offices drawing up contracts and offering legal council. Attorneys may also be called lawyers or councilors.
Finding an Attorney
If you need to find an attorney, then you probably have many options in your region. You can find their names listed in phone books and online directories, but you can also find them advertised on television commercials, radio shows, bus stops, bulletins, and other advertising outlets.
Choosing an Attorney
Before you decide which attorney you are going to hire, you might want to contact several of those that are in your area to help you choose one that can give you the affordable services that are best for you. Not all attorneys focus on the same types of work. Some of the popular lawyers that have commercials on television focus on personal injury and debt settlement cases, but there are also attorneys that can help you with issues such as citizenship, copyright, patents, child custody, business incorporation, and many other topics. The list of subjects that an attorney might choose to focus on seems virtually limitless. They can also get incredibly detailed. For instance, a transportation lawyer might choose to focus on federal railroad law.
Getting an Attorney that is Right for You
When you call the attorneys in your area, you should ask them what types of law they practice. You might want to describe the type of copyright or patent problem that you need help with to see if they have the qualifications needed to assist you. Ask the attorneys what law schools they attended and graduated from so you can choose one that has a good education. You should also make sure that they are currently in good standing with the Bar Association. If they are not in proper standing, then they may not be able to represent you in court.
An Attorney with References
Getting this information will help you choose a real professional who has the skills to help you solve your legal issues, but you cannot know for sure that the lawyer can help you unless you talk to someone who has used his or her services before. Getting references from the attorney gives you the chance to talk to his or her other clients so you can make sure they have gotten reliable legal advice, patent court representation, copyright infringement assistance, or other types of services.
Get Price Quotes from the Attorney
If you are convinced that an attorney can give you the legal services that you need, then you should ask him or her to give you a written price quote for your case. This will help you decide which attorneys are affordable for you and which ones are outside of your price range.
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By Copyright Law
July 30th, 2009 at 12:41pm
Under intellectual property
Patent law grants exclusively privileges to inventors so they can earn money from the methods and products that they create. There are many different types of patents available in the United States, so inventors might want to seek the assistance of a lawyer or law firm that understands the details of patent law.
Patent Law Regulates Many Different Types of Inventions
Patent laws typically regulate the use of processes, inventions, and improvements on existing products and processes. This potentially spans many different disciplines. For instance, an entrepreneur might develop a new business method that she or he can have patented to prevent others from using it. A biologist might apply for a patent to protect his or her rights to a new organism or biological process. Computer scientists might seek patents for software that they create.
The Advantages of Patent Law
Patent law encourages inventive people to continue developing new products, techniques, and ideas by rewarding them with exclusive economic rights. Without patent law, there would be little economic incentive for someone to spend long hours developing new ideas and products because someone else could immediately profit from the inventor’s hard work. Patent law gives the inventor a certain period of time during which she or he has exclusive rights to financial gain from their intellectual property.
What Does Patent Law Do?
Patent law prevents others from using the ideas and designs of an inventor. Patent law does not, however, require the inventor to use the designs or ideas that are patented. It is possible for an individual or company to patent a process merely to prevent others from using it. According to most patent laws, this is legitimate even if the patent holder does not plan to take advantage of the invention.
What Terms Do Patent Laws Offer Inventors?
The term of a patent is the amount of time that the inventor holds exclusive rights. Typically, this period of time is 20 years in the United States and other countries associated with the World Trade Organization (WTO). There are, however, some differences in terms between different types of patents. For instance, in the U.S., patents for decorative designs that do not offer improved functionality are only effective for 14 years.
In some cases, though, inventors and companies are able to extend the patent term to a period longer than 20 years. This often requires going to court and hiring experienced patent law attorneys, and is usually only pursued when the patent makes large amounts of money each day.
Hiring Patent Lawyers for Professional Services
Many large companies that hold hundreds or thousands of patents employ lawyers that know the details of patent laws. If you need to hire a lawyer to help you seek a patent for your invention, though, you will need to find someone with plenty of experience. Be sure to find a patent lawyer who has experience with the types of patents that you need. Someone familiar with how patent laws pertain to manufacturing may not be able to give you the services that you need when filing for a patent that protects your business method.
By Copyright Law
July 29th, 2009 at 12:43pm
Under trademark law
An intellectual property law firm should have attorneys with several years of experience protecting the rights of artists, designers, engineers, and business developers. There are several different types of intellectual property, so a law firm might employ lawyers that specialize in individual topics such as copyrights, patents, trade secrets, trademarks, and industrial designs.
Why are Intellectual Property Law Firms Useful?
Intellectual property law gives incentive to those who create new ideas by offering them exclusive rights to earn money from their ideas for a certain period of time. One might see intellectual property law as a type of temporary monopoly that allows the creator to earn money without competing with others who might try to use the idea, process, design, or work of art for their own profit. An intellectual property law firm can help those who create new ideas prevent others from taking advantage of their work without paying the inventor or creator.
Who Needs an Intellectual Property Law Firm?
There are many different types of intellectual property, so there are also many different types of professionals who might need the services of an intellectual property law firm. Those who work in technology development almost certainly need an intellectual property law firm to make sure no one steals their ideas, programs, or designs. Musicians, writers, and artists of all types might also need an intellectual property law firm to make sure they get all royalties that are due to them from the commercial sale of their creations. Even business professionals might need intellectual property law firms to protect their management concepts.
The Two Categories of Intellectual Property
There are two types of intellectual property, so you might want to choose an intellectual property law firm that specializes in the one that affects you most. The first category gives exclusive rights to artistic and commercial creations. This could include a movie, book, painting, or computer software. The second type that an intellectual property law firm might specialize in is typically called industrial properties. These are typically inventions that are used in production or industry.
Finding an Intellectual Property Law Firm
Depending on where you live, you might find that there are several intellectual property law firms for you to choose from. If you work with other professionals and artists who use the services of an intellectual property lawyer, then you might want to ask them which firms they prefer. Colleagues who have more experience might be able to tell you about the positive and negative experiences they have had with the intellectual property law firms in your area, which will help you develop a short list of firms that you can choose from.
Meet with representatives of the firms that get good reviews from the other people in your field. During your meeting, you might want to ask about their qualifications to help you choose an intellectual property law firm that specializes in the type of products and ideas that you create. You should also ask them how much money they charge so you can choose a firm that is affordable for you.
By Copyright Law
July 27th, 2009 at 12:41am
Under intellectual property
Patents ensure that a person or company owns the legal rights to an idea, technology, or product for a specified length of time. They are legally binding arrangements that prevent competitors from taking ideas and products to sell or use as their own. There are many different types of patents, and therefore there are many different types of patent lawyers who can guide laymen through the often labyrinthine process of securing a patent, so you should be certain that you get all of the patents that you need to ensure that your intellectual property and products are protected.
Types of Patents
Among the many different types of patents that one might apply for, some of the most popular categories include biological patents, chemical patents, software patents, and business method patents. Even within these popular categories, however, there can be many subcategories that one should be aware of when seeking a patent lawyer. For instance, a company might own biological patents on either seeds or animals. A patent lawyer who has lots of experience working with corporations that create genetically modified seeds might not know as much about the relevant cases pertaining to animals.
Securing a Patent
Securing a patent often requires filling out many forms. Those who do not have experience in patent law might not even understand what information many of the forms request. They appear to be written in code to those who do not know how to read them properly. Lest one should think that applying for a patent is easy, perhaps they should consider that Einstein worked in a patent office. Getting an experienced attorney is a very reasonable way to make the patent process much simpler.
Finding a Patent Lawyer
Depending on what area you live in, you might find that there are many different patent lawyers from which you could choose. Patent lawyers do not typically advertise on TV, radio, and bus stop benches like personal injury lawyers, so you might have to use a directory to make a list. Making a list is the easy part. After you have chosen a few patent attorneys in your area, you will need to contact them to help you decide which one you would like to hire.
Choosing a Patent Lawyer
Start by contacting the first patent lawyer on your list. You might speak to an independent lawyer who runs her or his own office, or you might speak to a firm that employs several lawyers. Ask the attorneys how much experience they have in patent law. Ask them what types of patents they typically focus on so you will know if they have a basic grasp of the technology or ideas that you want to patent. It often helps to find a lawyer that has a background in biology, technology, or business as well as patent law because this can help them fully comprehend the details of your idea or product.
Ask the lawyers how much they charge for their services too. This will help you choose a patent attorney that you or your company can afford to hire.
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By Copyright Law
July 26th, 2009 at 06:41am
Under intellectual property
Leveraging through Software Patents
The question of whether software is patentable dates back to the 1970s. The United States Patent and Trade Mark Office (USPTO) historically had been reluctant to grant patents on inventions relating to computer software. Their rationale was that patents could only be granted to processes, machines, and articles of manufacture and compositions of matter. Patents could not be granted to scientific truths or mathematical expressions of it. The USPTO viewed computer programs and inventions containing or relating to computer programs as mere mathematical algorithms, and not processes or machines.
In the 1980s the United States Supreme Court forced the USPTO to change it’s position. Diamond vs. Diehr, decided in 1981, provided the first instance in which the US Supreme Court ordered the USPTO to grant a patent on invention related to Computer Software. In this case, the invention related to a method for determining how rubber should be heated in order to be best “cured”. The invention utilized a computer to calculate and control the heating times for the rubber. However, the invention (as defined by the claims) included not only the computer program, but also included steps to heating rubber, and removing the rubber from the heat. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process of molding rubber, and hence was patentable. This was true even though the only “novel” feature of this invention was the timing process being controlled by the computer.
In the early 1990s, the Federal Circuit Court in the United States, which is the highest court for Patent Matters other than the Supreme Court stated that, if the invention utilizes the computer to manipulate numbers that represent concrete, real world values (such as a program that interprets electrocardiograph signals to predict arrhythmia or a program that analyzes seismic measurements), then the inventions relating to those real world concepts is patentable.
In 1995, the U.S.P.T.O. decided it was time to develop guidelines for patent examiners that reflect these recent court decisions. After releasing draft versions of the guidelines for comment, the U.S.P.T.O. adopted guidelines for U.S.P.T.O. examiners to determine when a software related invention is statutory and therefore patentable.
Bitlaw a comprehensive website on Intellectual Property states that the primary benefit of protecting computer software through the patent system is the strength of protection provided by the patent laws. An owner of a patent may prevent all others from making, using, or selling the patented invention. In connection with software, an issued patent may prevent others from utilizing a certain algorithm (such as the GIF image compression algorithm) without permission, or may prevent others from creating software programs that perform a function in a certain way.
In contrast, copyright law can only prevent the copying of a particular expression of an idea. In connection with computer software, copyright law can be used to prevent the total duplication of a software program, as well as the copying of a portion of software code (both of which are examples of “literal infringement”). In addition, copyright does provide some protection against non-literal infringement, such as the near duplication of screen displays, and the creation of “cloned” software. However, courts have recently been reluctant to interpret copyright protection of computer software in a broad manner. In addition, the basic tenet of copyright law is that copyright will protect only the expression of an idea, and not the idea itself. Consequently, copyright law will not prevent the creation of a competing program that utilizes the same ideas as an existing program.
In recent years, the United States Patent and Trademark Office (USPTO) has granted a rapidly increasing number of patents for software-related inventions.
In recent years, the United States Patent and Trademark Office (USPTO) has granted a rapidly increasing number of patents for software-related inventions. According to the Software Patents Institute in the United States, thousands of “true software patents” are issued every year, covering such areas as business software, expert systems, compiling functions, operating system techniques, and editing functions. At the same time, software technology has continued to advance, using combinations of previous advances in order to create new goods, services, and production processes.
Regardless of one’s opinion on the issue of whether software-related patents are good or bad for society, the fact remains that a rapidly increasing number of software companies are filing software-related patent applications every day. This creates a need for software companies to begin developing programs and procedures to protect their intellectual property through the patent system.
India is emerging as a world leader in the field of software technology. The IT software and services industry in India grossed an annual revenue of Rs. 37,760 crore (US$ 8.26 billion) during 2000-01, according to the annual industry survey released by the National Association of Software and Service Companies (NASSCOM), the apex body of software, e-commerce and IT services industry in India.
Mr. Phiroz Vandrevala, Chairman, NASSCOM while releasing the highlights of Nasscom’s survey said, “the interesting highlight of 2000-01 was that one out of every four global giants, outsourced their `mission critical software requirements’ to India”. Mr. Phiroz Vandrevala further said, “The Indian software industry still requires moving faster on the value chain ladder and getting more involved in strategic consulting, brand management, Research & Development and providing more web based and e-commerce kind of interactive services to the customers”.
Hence the need to protect our Intellectual Property Rights will be more keenly felt once the Indian Software Industry is well on its way to creating a niche as a mature developer of hi-tech software products.
The Indian Patents Act, 1970 does not explicitly exclude patenting in computer programs. Section 2(1)(j) of the Indian Patents Act, 1970 defines “invention” as any new and useful
i) art, process, method or manner of manufacture;
ii) machine, apparatus or other article;
iii) substance produced by the manufacture
As per the present legal interpretation of the above definition of the invention, the patentable subject matter in addition to being novel and useful, should be about manner of manufacture and it must result in a non-living and tangible thing. From this explanation, it can be inferred that software, as such, in the form of a mathematical algorithm may not be a patentable subject matter as it is not about manner of manufacture and it does not result in a tangible thing.
This situation changes when software is combined with a machine/computer and the machine/computer under the influence of the software, becomes a ‘novel’ machine/computer and this becomes patentable subject matter.
Contrary to popularly held belief that software related patents are not permitted by Indian Patent Office; there are several instances where software related patents have been granted by the Indian Patent Office. One example is the Software related patent no 176178 granted to IBM, USA for “System for Creating an Application Program Package’” by the Indian Patent Office.
Proposed Changes in the Law
The Patents (Second Amendment) Bill, 1999 to the Indian Patents Act, 1970 has been brought out in the light of the TRIPS Agreement and to make the Act a modern, harmonised and user-friendly legislation. However as far as Software Patenting is concerned, the proposed amendments to the act may be considered a retrograde step as it explicitly excludes computer programs from patentability.
This becomes evident if we consider the non-patentable subject matter, which have been specifically included by way of addition to Section 3 (of Indian Patents Act, 1970), which deals with non-patentable inventions. The proposed bill in addition to other non-patentable subject matter excludes “a mathematical or business method or a computer program or algorithms” from patentability.
Once these amendments are affected into the Act, patenting in software will become impossible as compared to the present legal position where the Indian Patents Act does not exclude, explicitly, computer programs from patenting.
Leveraging through Patents
Among companies with patent portfolios, it is a very common practice for one company to offer to cross-license one or more patents of its own when accused of infringing a patent belonging to another company. Through this practice, the patent assets of both companies are increased.
Small and medium software companies can benefit from patenting in software by reaping profits through licensing their patents to bigger corporations. In fact, lack of patent protection makes it easier for bigger corporations to copy ideas from the software developed independently by small and medium software companies.
Thus, software companies should begin evaluating the best internal procedures for identifying potentially patentable ideas and pursuing patent protection for such ideas. Since software-related patent applications are often relatively expensive and time-consuming, appropriate business decisions should also be made to support such an endeavor.
Urgent Needs
While making provisions for patenting in some form in the Indian Patents Act, we must also address the procedural realities of the Indian Patent Office. The facilities at four branches of the Indian Patent Office must be strengthened so that examiners are able to conduct an effective search while deciding the novelty and inventiveness of Software related inventions. The Patent Office should have an Examiner’s Manual, as is done in the USPTO, providing clear cut guidelines regarding patentability of software related inventions. Examiners at four branch offices of the Indian Patent Office should be made fully conversant with the technicalities of software related inventions. Additionally an awareness drive should be vigorously launched to make the software industry fully aware of the issues involved with patenting software in India as well as abroad.
All these needs have to be addressed in right earnest before the nation really benefits from the Great Indian Software Story!
Bibliography
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By Copyright Law
July 24th, 2009 at 12:41pm
Under intellectual property
We’ve all seen and heard of patents, but how many people actually know what a patent does and what you can get a patent for? The simple answer to this question is that, although many people are aware of the function of a patent, surprisingly few people know anything more than that, even straightforward aspects such as what you can get a patent for. A patent is one of four main types of intellectual property, which is essentially any form of ‘original creation’ that can be bought or sold. The other three are trademarks, designs and copyright. Patents are used to protect new inventions and give the owner of the invention the legal right to prevent others from ‘making, using, importing or selling’ the invention unless they first obtain the permission of the owner. However, on rare occasion, a patent is not enough to stop other people from attempting to exploit the patented invention through importing, copying, manufacturing or selling the invention. In such cases, a patent would give the owner the legal right to take those exploiting the invention to the courts in order to claim damages against them, and, as a result, a patent can act as a deterrent to those who try to exploit inventions. Part of the way it does this is by detailing the invention very clearly so that the court would be able to see it had been copied. Patents cover many different aspects of an invention, such as how inventions work, what function they carry out, how they carry out that function, what the invention is made of, and how the invention is made. Patents allow the owner to sell the invention and to sell the intellectual property rights, and to license the invention to someone else whilst retaining the intellectual property rights. Additionally, a patent allows the owner to chat about the invention with other people so that they may start a business that is based around the invention. There are many reasons to patent an invention, and one of the foremost reasons is that of what will happen if you do not patent your invention. If you invent something and do not patent it, anyone can use, manufacture, and even sell your invention without first obtaining your permission. Although it is sometimes possible to keep an invention a secret, it is often impossible to do so if technology is on display as part of the invention. If you have invented something that you wish to patent, an important consideration to bear in mind is that you should not tell anyone about your invention before you apply to patent it, as this can cause your application to become invalid. There are, of course, exceptions to this, in that you can speak to – and it advisable to do so – solicitors, registered lawyers, or even a patent agent, as anything you tell them will be in confidence as it is legally privileged. Another thing to consider is that you cannot patent certain things, such as mathematical discoveries or artistic work, because they do not conform to the requirements of patent protection. Inventions must ‘relate to how something works, what it does, what it is made of, or how it is made’, it must be new, it must be an inventive step in the area it covers, and it must be capable of being either made or used in an industry. Before applying for a patent, it helps to get good, confidential advice from a professional, such as a solicitor. If you wish to find out more – before talking to a professional – about, for example, the requirements for patent protection it is best to go to the government website for its Intellectual Property office, where all guidelines on patents can be found. This article is free to republish provided the authors resource box below remains intact.
Marios Pattihis is managing partner of Healys
London Solicitors which is a specialist
Intellectual Property Law Firm. Marios’s experience in commercial property work is extensive specializing in property development and in acquisitions and disposals of companies and businesses.
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By Copyright Law
July 24th, 2009 at 06:41am
Under intellectual property
News items flooding from our daily information sources on patents, company law suits, intellectual property rights, and the like would make one believe that the system of patenting is quite young. On the contrary, history of patenting dates back to more than five hundred years.
The present day patent concept was first implemented in England in 1449. King Henry VI of England granted a 20 year monopoly to one, John Utynam, on his stained glass manufacturing process. Though, stained glass manufacturing process was prevalent then, in various parts of England, it was the first state-granted limited monopoly for an industrial practice. By 1552, open letters called Letters Patent were issued under the Great Seal of the King, to officers and friends patronized by the Court. These Letters Patent were issued not only on inventions but on industries, too. For example, the stationers enjoyed a privileged monopoly over publishing industry in England. In 1624, the English Parliament under the directions of Sir Francis Bacon, a great thinker of those times, adopted the doctrine of public interest into patenting. It passed the Statute of Monopolies, recognizing the economic benefits through innovation and awarded patents to protect the rights of the inventors for a term of 14 years.
Immigrants from England in search of new shores of opportunity, traveled to the New World that was already discovered by Christopher Columbus. In 1585, authorized with a patent from Queen Elizabeth to claim and colonize the “heathen and barbarous lands”, Sir Walter Raleigh, established the first British colony in North America. Along with the colonizers came the patenting system from England to America. The patenting system was followed provincially within the various British colonies.
In due course of time, the need to protect the interests of the inventors was constitutionally recognized and included in the US constitution as the Intellectual Property Clause. Over the next fifty years, after the US constitution was framed, the US Congress passed the Patent Acts of 1790, 1793, and 1836. These Patent Acts formed the basis for the first legally regulated patenting system. The Patent Act of 1790 was drafted by Thomas Jefferson, the principal author of the Declaration of Independence. The 14 years exclusivity of rights over an invention was retained in this Act, and it was required to submit s along with the applications. Under the 1790 Act patents were issued only to physical inventions that were put into practice and not on ideas.
The patent application examination extended over several months and the granting happened over even longer durations. Between 1790 and 1793 only 57 patents were issued owing to inefficiency at the level of processing patent applications. As a response to the mounting pressure from the inventors the Patent Act of 1793 was passed to make the patent system efficient. Between 1793 and 1836, there was an increase in the number of patent applications. To organize and maintain patents for easy cross examination, the Patent Act of 1836 allowed the publishing of patents and made them publicly available through libraries. The availability of knowledge of an invention from the published patent documents created interest amongst the public. Due to increasing understanding amongst people of the economic value and advantages of inventions, the number of patent applications increased from 765 in 1840 to 21,276 in 1867. A method for grouping similar patents under classes, begun in 1774, was also evolving simultaneously.
In the meantime, in England, the Statute of Monopolies continued to exist for over two hundred years. The Industrial Revolution and the Great Exhibition of 1851 lead to dramatic technological changes that were inefficiently addressed by the Statue of Monopolies. With growing concerns over the state of public affairs, the Government introduced the Patent Law Amendment Act of 1852 and the Patent Office was instituted. In a milestone achievement of the Act of 1902, patent documents from 1855 to 1900 were condensed and classified into 1022 volumes in 146 classes. The present day legislation on patenting follows the Patents Act of 1977.
On the lines of international collaboration, the need for worldwide accessibility to intellectual property systems, including patents, was recognized in the Paris Convention in 1883. The countries entered into the Convention (contracting countries) had accessibility to the IP systems of other countries party to the Convention. Currently there are 171 countries that are party to the Paris Convention. In an effort to provide further international cooperation, the World Intellectual Property Organization (WIPO) was established in 1967. WIPO is a specialized agency of the United Nations promoting the protection of intellectual property throughout the world. The signing of the Patent Cooperation Treaty in 1970, by various countries, has made it possible to file patent applications to protect inventions in each of the contracting country. Presently, there are 184 member countries of WIPO.
On similar lines, the European Patent Convention of 1973 resulted in the establishment of European Patent Office (EPO) that is responsible for granting European patents. The 32 contracting states have entered into a multi-lateral treaty creating an autonomous legal system for granting European patents.
Presently there are about 200 patent offices including the USPTO in US, Patent Office in UK, and EPO for European countries. Patent offices like ROSPATENT and SIPO of Russia and China are as recent as 1955 and 1980. The patenting system is fast growing even in countries like Ethiopia, Afghanistan, Angola and Papua New Guinea. Organizations like WIPO and EPO, additionally are promoting IP protection on a global scale.
Ash Tankha, US patent attorney, works with inventors to develop their ideas into patent application for worldwide filing and patenting. Contact Ash Tankha at
ash@ipprocurement.com or visit
www.ipprocurement.com.
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By Copyright Law
July 23rd, 2009 at 12:42pm
Under intellectual property
The Israeli economy is characterized by modern industry, technological and scientific knowledge, intensive activity in foreign trade and a well-developed financial market. Since Israel’s natural resources are poor, priority is given to research and development investments to promote the technological and qualitative edge of Israeli products in international markets. In addition, Israel has a well-developed service sector, which fully supports industry via banking, accounting, legal and technological services.
Israel is acclaimed for its highly skilled labor force, inviting the attention of international technological giants such as IBM, Microsoft, and Intel, which have established and maintain R&D centers. Teva, the largest manufacturer of generic pharmaceutics, is an Israeli enterprise, as are world-leading hi-tech enterprises such as Checkpoint, Alvarion and Aladdin Knowledge Systems. Additionally, the Internet revolution has produced hundreds of Israeli startups, the most renowned being Mirabilis, the manufacturer of ICQ, the famous instant messenger.
Israel’s legal system, particularly comprising Intellectual Property laws, has an excellent reputation. Israel is also a member of most major international conventions of Intellectual Property, such as the Paris Convention and the PCT Convention, implementing into the law most standards outlined in these conventions. A partial list of the conventions and treaties of which Israel is a member is cited at the end of this article.Filing: A patent application has to be filed at the Israeli Patent Office in Jerusalem. The filing process is quite simple in comparison, for example, to the American practice. The filing fee is “modest”, currently averaging about $200.
The specification of an application for patent may be in English, one of Israel’s official languages, in advantageous contrast to other countries, in which the applicant must have the entire specification or at least the granted claims, translated into local language.Priority: An Israeli application may claim priority from a former application for patent in a “convention state” (generally speaking, a state or territory to which the Paris Convention applies) if the following terms are sustained:
Reuben Berman is an Israeli Patent Attorney, the head of Edison Patent Attorneys Ltd, Israel,
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By Copyright Law
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