Copyright Law Blog

Patenting of Software- an Insight

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.

Canadian Music Laws – All Talk With Little Substance

August 13th, 2009 at 12:43pm Under copyright law

Music software firms have got together in Canada to try and cut short the burgeoning free peer-to-peer music sharing in its tracks. They have succeeded in getting some legal and tax concessions in support of their cause. Take a look.

There is much talk that peer-to-peer is music download is responsible for declining music sales. While there may be some amount of truth to the statement, a large part of the decibels raised may well be due to good old plain rhetoric. Industry numbers suggest that the popularity of latest gizmos like DVDs, retail chain distribution changes, and reduced prices of CDs in the retail market all have been playing their own role in the so-called woes. The woes themselves may not be entirely true themselves, as the music industry has seen fair amount of growth in recent years.

It can also be said with reasonable surety that Canadian artists’ royalty losses have been offset by the private copying levy system. The Canadian Private Copying Collective alone has collected millions of dollars over the past few years with much of that revenue earmarked for Canadian artists.

Laws that require people to pay for simple music software goodies like the popular iTunes have the potential of nipping a nascent industry in the bud. Whereas Apple iTunes may well be able to survive the pressure by using its deep pockets, smaller players may not be so lucky. Copyright rules require music download industry to submit more than 40% of their revenue to the collectives.

Incredible as it may seem, even the 40% of gross revenues as envisioned by these tariffs may not cover all the rights that are associated with commercial music download services. It remains well within the realm of possibility that other groups, including collectives representing music performers and producers, may come forward to demand their piece of the cake by further cutting into online music services’ revenues.

While the well established players have settlements that have been well negotiated to their advantage with the record labels, it is the development of a viable economic model that the future growth of the industry depends on. The much maligned peer to peer downloads are actually already subject to a fair amount of compensation through the levy on private copying. The actual threat lies elsewhere – the collectives that essentially are poised to capture a very large share of the tiny market.

For tariff options, the webcasters and the online games industry are the ones in limelight. Others have been eyeing the multi-million online sharing music industry. As much as 25% of revenues, however, continue to come from the online websites that offer music sharing with free music software. The reproduction rights over online music are also being targeted to generate additional revenue in this vast field. Audio webcast sites that feature content similar to conventional radio stations, as well as from established radio stations that webcast their signal also well in the line of fire. Of course, there are different rates of taxes for different online services – varying from five percent to as high as twenty-five percent.

Be sure to be familiar with the laws before you go for the next download. It will help you stay out of trouble and keep your worries at bay. Best wishes, and happy downloading!

Why Outsourcing to Vietnam is a Sound Business Decision

August 10th, 2009 at 12:41pm Under intellectual property

1. Overview

This document lays out the business case for meeting your company’s software development needs by outsourcing to Vietnam. It first outlines factors to consider in deciding which offshore locations to outsource to. Then it considers those factors one at a time for Vietnam, concluding that the country is a promising offshore location for outsourced software development and for business’ other IT needs.

2. Factors to Consider Regarding the Offshore Provider’s Location

In this section, we present a simple and straightforward framework for understanding the advantages and disadvantages of various offshore locations for your outsourced projects and business functions. This list of factors focuses on the most important and relevant factors, without becoming overly complex by listing unimportant minutiae.

The main factors that should be considered are as follows:

3. The Benefits of Outsourcing to Vietnam

As stated in the introduction, this section will evaluate Vietnam as an outsourcing destination against each of the factors listed in the preceding section.

4. Who outsources to Vietnam?

Many Japanese companies are choosing to outsource much of their IT work to Vietnam. According to a November 2006 article in GlobalServices, “Vietnam: Capitalizing on the China-Japan,” by the year 2010 as much as 10% of Japan’s software outsourcing may be sent to Vietnam.

Intel is also heavily reliant on Vietnam to meet its outsourcing needs. In October of 2006, Intel Capital, the unit involved in venture capital for the Intel Corporation, announced a $3.5 million investment in FPT, Vietnam’s largest software company, located in Hanoi. Earlier in that same year, the company said that it was going to build a factory for chip assembly and testing with a price tag of $300 million (San Jose Mercury News, “Intel Invests in Vietnam Software Company, October 24, 2006).

Other companies that have chosen to outsource to Vietnam include Nortel Networks, Bayer, Sony, Cisco, and Anheuser Bush (source: CIO.com, “Outsourcing to Vietnam”).

5. Vietnam Is an Excellent Outsourcing Destination

For all the reasons described above, Vietnam is clearly an excellent choice for meeting any business’ outsourcing needs. Here is a quantitative summary of the advantages of working with offshore providers located in Vietnam.

Contact:

Ms. Doanh Nguyen: Sales

Email: sales@blueball.com.vn

Sales Representative

International Marketing Department

Blue Ball Co. Ltd.

www.blueballgroup.com

Thailand

252/94 Muang Thai – Phatra Complex

Tower 2, 17th floor, Ratchadapisek Rd.

Huay Kwang, Bangkok, Thailand Tel: +66 2 6932940

Fax: +66 2 6932941

Vietnam

Quang Trung Software City Ground Floor, Anna Building District 12, Ho Chi Minh City Tel: +84 8 4371032 Fax: +84 8 4371033

Avoid the Outosurcing Pitfalls

August 9th, 2009 at 06:41am Under intellectual property

TABLE OF CONTENTS? Ignoring the risks? Communication is crucial? Adopt a flexible management? Good quality versus good price? Don’t forget security? Keep in mind the geopolitical and economic issues

Ignoring the risksIn stead of introduction, ignoring the risks and pitfalls is actually the first and most common mistake in outsourcing. Ignoring to prepare for outsourcing, failing to consider and understand the full impact of outsourcing on your company results and the actual expectations and goals in this project is the major pitfall before even engaging into outsourcing.Tips that may help:? Set objectives and strategies for outsourcing? Find support and build commitment from within your own company for the outsourcing project; make sure you have the right people to drive the outsourcing effort? Define the requirements, set realistic expectations, make sure your organization understands them? Estimate risks, costs, and changes from current business model or be prepared to take them into account? Thoroughly evaluate vendors? Have an exit plan before you enter the outsourcing deal. Don’t try to micromanage the outsourcing provider, let him choose the resources, manage the output, not the input. Set targets and measure results. If you are asking for CVs, people and generally input, you are not managing the right thing.

Communication is crucial

Care for diversity and cultureOne of the most common pitfalls that you will meet in outsourcing is the poor level of communication. Bad communication between parties is surely a success-killer for your outsourced business.Often, this is related to the cultural differences that appear in an outsourcing process since the inner nature of this process implies working with people from various countries and different cultural and professional backgrounds.While cultural gaps may seem a soft science, dramatic differences can quickly erode an otherwise successful offshore outsourcing relationship. Assuming the cultural differences do not exist in the business community and that all professionals are the same around the globe is a crucial mistake. This can lead to misunderstanding of commitments, plans, schedules or status reports or even soft and sensitive issues like tensions in the outsourced team inflicted through culturally insensitive comments or actions. Explain the requirements and then ask questions that would prove that the requirements have been properly understood. Refrain using more colloquial English, use simple, business English. Put in charge of the outsourced project someone that has multicultural experience, someone that has successfully worked with people remotely.DO’s? Make sure that, when you start the outsourcing relationship, you dedicate the right people and resources on both ends? Make sure your contact person has very good communication skills ? Define as much as possible the expectations, document them and set clear performance metrics, set clear targets.? Be prepared to change, allow flexibility to your contract. Be prepared to renegotiate the outsourcing contract once the outsourcer partner better understands your business.

Outsourcing introduces misunderstandings during communications and translations between languages, and varied cultures and contract structures. Company executives must see these implications and consciously evaluate mitigation strategies.Setting the sceneDerived from communication is also setting the expectations. Setting the expectations is one of the most important steps to undertake at the beginning of the outsourcing relationship. If the goals are not mutually understood and shared, both parties will demand something else from one another and therefore success can fade between different expectations. This can be mitigated by explaining as much as possible the expectations, documenting them and measuring some clear targets.Tips that may help? Use a single communications channel. It’s important to establish change information with the provider via one-to-one channel, between the project manager from their side and your dedicated person from your side. Initial specifications are never perfect and you can overcome the problem with continuous feedback.? Listen to them. If you hire them for expertise you lack, don’t pretend you know it all. Listen to what they say.? Share your knowledge. Send over one or two members of your staff to join the development team for a while. This will help everyone better understand your corporate structure and standards.? Know the project manager. The project manager in charge with the outsourced project has to have a very clear understanding of cultural differences. Ideally, he has travelled widely and lived in several countries so he knows why people act as they do.? Treat your partner as long-term partner. If you plan to address an outsourced team, plan a long-term relationship.You will need to closely review the project and monitor progress often.

Adopt a flexible management

DON’Ts? Not considering the full impact of an outsourcing agreement on a company’s financial condition.? Lack of incentives for provider continuous improvement.? Lack of a contingency plan for major disruptions at the service provider.? Expecting too much from a provider in the early months after go-live.? Neglecting to “flex” the outsource relationship as outsource requirements evolve.DON’Ts? Disregard the full impact of an outsourcing agreement on your company’s financial condition.? Lack of incentives for provider continuous improvement.? Lack of a contingency plan for major disruptions at the service provider.? Expecting too much from a provider in the early stages of the outsourcing go-live.? Neglecting to “flex” the outsource relationship as outsource requirements evolve.The outsourcing relation does not manage by itself. It must be managed permanently, adjusted and evaluated regularly. Changes must be applied; contracting terms must be reviewed, etc. And, most important, these activities will carry added costs on your end.Make sure you avoid this compelling issue: being rigid in scope of work. Especially when dealing with a project that involves R&D, flexibility is an imperative. You must be ready to change and adjust according to the findings in the process.You might need extra resources to dedicate to your project, so make sure you have provisions in your budget for this. A way out is available on both ends. Businesses are constantly identifying new strategic initiatives. If a third-party IT provider can’t accommodate new goals, the customer company might want out of the contract.However, be prepared to have an exit plan; it might cost more than you estimate, but less than proceeding with an unsuccessful partnership.When implementing outsourcing, make sure you’re establishing a relationship that has sufficient flexibility to deal with business fluctuations. You must have a realistic timeline for the outsource process and estimate correctly the time required to negotiate a service agreement.Remember to get the operational issues resolved in the service agreement before moving into legal aspects and financial terms of agreement.

Good quality versus good priceIt is well known that one of the benefits of outsourcing are cost savings. But more important than these, are the benefits related to improved quality and operational expertise.This is directly connected to the contracting the service with a Service Level Agreement (SLA). In poorly defined contracts there is no measure of quality or SLA defined. Even when an SLA exists it may not be to the same level as previously enjoyed. This may be due to the process of implementing proper objective measurement and reporting which is being done for the first time. But it may also be lower quality through design to match the lower price.Therefore, if you want good quality don’t negotiate on price but make sure that quality can be provided given the price. In any moment in time, from price, quality and development time, you can only have two of them.Even though the price for good quality and rapid development might be lower by outsourcing than the price on your local market, it will still be higher than the price you would get from comparable outsourcers playing on the same market.Make sure you send the right signals, if you want to squeeze the maximum out of your outsourcing partner don’t nickel and dime him, reward the right behavior. Rewarding the right behavior is very important as it will align your goals with the goals of the outsourcing partner. If the ultimate goal is to keep the costs low, then reward the partner for not going over the budget and coming up with more cost effective solutions. If your ultimate goal is quality, the set a maximum number of defects that the final product should have and reward the partner based on this goal’s achievement. On the other hand if you want speed, then make sure you reward the completion of tasks in time and bonuses for delivering them ahead of time, know that your outsourcing partner will have to motivate it’s employees and push them to the max, so make sure you reward him as well.Do not consider outsourcing only for labor arbitrage. On the long run, greater benefits of outsourcing reside on economies of scale and specialization beyond cost savings with the right mature partner for outsourcing.

Don’t forget securityBefore outsourcing, an organization is responsible for the actions of all their staff and liable for their actions.When these same people are transferred to an outsourcer they may not change desk but their legal status has changed. They no-longer are directly employed or responsible to the organization. This causes legal, security and compliance issues that need to be addressed through the contract between the client and the suppliers. This is one of the most complex areas of outsourcing and usually requires a specialist third party adviser. One of the first things you have to make sure of is whether the employees of the outsourcer have a non compete, non disclosure agreement signed with the outsourcer.For instance, standards of privacy are often looser in some countries than in others. This more relaxed attitude toward privacy could have serious consequences when it comes to protecting corporate data, experts on the panel warned.Companies that outsource operations overseas are advised to train local staff to adhere to the company’s global privacy standards and to check into the risk of government interception of sensitive confidential information. There are a few questions you should ask in order to evaluate the risks in terms of security, such as: What is the infrastructure for security of the outsourcer? Do they have an admins/security specialist? Are they PCI compatible? Maybe? The outsourcer can be the weakest link if you need to be either PCI or SOX compliant. How is your (your customers’) data protected?You must put security issues at the top of the talking points list when you begin negotiating with offshore outsourcers. This might even require information security staff to be at the table in both operations and strategic planning functions. The most significant security issues revolve around the protection of data in one manner or another.Tips that may help1. Get Your House in Order – Before going outside, make sure your own house is in order. Have a realistic security policy that includes data classification and that distinguishes common from sensitive data, as well as how each type of data should be handled.2. Choose Vendors Carefully – Make sure the service provider you use has strict security policies too, starting with the hiring process. This rule applies to all types of vendors, but especially to offshore companies.3. Understand the Privacy and Intellectual Property Mindset – Many countries have very laxintellectual property protection laws. Make sure that the vendor you chose is willing to abide by your privacy and intellectual property policies since a misunderstanding can be costly.DO’s? Initiate an agreement with a service provider that allows flexibility for the future? Have a realistic timeline for any of the steps of the outsource process, including start-up? Fully define an employee transition plan? Do proper planning concerning information systems and interfacing with the service provider? Do enough technology development before implementation4. Use Protection – You can address the two issues above with a combination of database monitoring gateways and application layer firewalls. These devices have the ability to enforce usage policies as well as prevent privilege abuse and vulnerability exploitation.5. Monitor Traffic – Make sure the service provider monitors outbound Internet traffic and emails for potential information leaks.Keep in mind the geopolitical and economic issues In connection with the previous mentioned cultural gap and security factors, there are some other few risks you should observe before getting into an outsourcing business relation.

Geopolitical risksIt is related to the host country. Most important factor is political stability and legal environment. Managers should carefully examine the latest political situation of the host country before making their decision. The political situation of most of the host countries is stable nowadays. That is why pre-outsourcing analysis first includes the legal factor. Here the main factors that have to be evaluated are intellectual assets privileges enforcement, industry laws, customs regime, license and “trade exit” conditions.. While analyzing geopolitical risk one should remember such things as – level of political stability in the host country, legal environment, level of government regulations and support, requirements for vendors etc.Intellectual Property Protect ion (IPP)A very important question as offshore outsourcing almost always means the creation and/or maintenance of intellectual property. Often, developing countries do not have the best reputation to protect intellectual property.It is very important to learn about the IPP law in the target country before the start of an offshore outsourcing operation.

ConclusionThe majority of problems with outsourcing deals are caused by poor communication and lack of effort early in the process.As with any relationship, communication and understanding of mutual expectations is key to the ongoing health of the relationship.Customer executives considering an outsourcing need to understand what they are trying to achieve and be willing to put the effort in up front to increase the likelihood of getting what they want.

Audio Galaxy, Music introduced

July 29th, 2009 at 06:41am Under music copyright

Audiogalaxy free download is committed to promoting and raising people’s understanding of music and broaden the range of music available that you might not know exists through a community of people who have a passion for music. The music application Features Auto-resuming: Never worry about resuming incomplete files. It is a file sharing system that indexed MP3 files. Audiogalaxy free download started out as the Borg Search, an FTP search engine written by Michael Merhej. Its stated mission was to facilitate sharing of music, though much more appears to have grown from its legacy.

The media application is great for that because of its unique group of users. Audiogalaxy free download is a cut above the rest of the peer-to-peer apps. The policy ran a type of centralized server, which means the company had some control over the types of files on its system. The music design company, which has consistently ranked among the most popular applications at Download. It has and is preventing a user from downloading certain more main stream songs. Some Features of its Auto-resuming: Never worry about resuming incomplete files. The Satellite is a real-time, transaction-based file-sharing system for MP3 users. The program is committed to promoting and raising people’s understanding of music and broaden the range of music available that you might not know exists through a community of people who have a passion for music.

The software program had to deal with several copy right cases. The popular Internet file-swapping service, agreed to filter copyrighted works as part of a legal settlement with the recording industry. The multimedia platform was accused of encouraging and facilitating the online trade in illegal music by “millions of individual, anonymous users”. But really Audiogalaxy free download was just trying to cooperate with the music industry and block copyrighted songs from their network. So nowadays the platform for online data exchange is coming back, in a big way. People who wish to have their music exchanged via Audiogalaxy free download may make their music available. The application is still allowed to provide a medium for people to exchange music.

The platform is great for that because of its unique group of users. Audiogalaxy free download also offers 25 megs of free Web space to musicians, so that they can post their MP3s, band information and images. Some Music categories here: rock, alternative, metal, blues, folk, jazz, rap and country. So you don’t have to be scared that your type of music isn’t presented. But important is that you must download, install, and run the Audiogalaxy free download Satellite for the system to work correctly. It resumes and best of all, you don’t have to worry about where it is downloading from, it automatically tracks the next best server. Requesting off-line files: If nobody is currently sharing the file you want, select it anyway because once somebody comes online with that file you will automatically start downloading it from them. SO don’t hesitate any longer and sign up for free today!

Leveraging Through Software Patents

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

Music and Movies Download Sites – are They a Scam?

July 25th, 2009 at 06:41pm Under music copyright

Surfing the Internet, looking for music and movies to download, you will find a lot of so called music and movie download sites These sites do not provide you with music, or movies to download, no, they provide you with file sharing soft ware you can use to search for, and download music, movies and games. Most of them also provide you with cd burning soft ware and they have a helpdesk for those members who run in to problems with their downloading.

These sites are under attack.

First of all there is the entertainment industry that wants to shut them down. They claim that these file sharing programs are used to download copy right protected materials.

This is true of course, but lots of people download and trade files legally on file-sharing networks.You can, for example, legally download music from hundreds of bands and thousands live concerts, as well as multiple software titles and games. File sharing has enabled music fans from around the world to build the largest library of recorded music in history. File sharing is not illegal as long as you obey and comply with all relevant copyright laws. Sharing copyrighted material without permission could be illegal in your country.

In America the RIAA (Recording Industry Association of America) are leading the fight against the sharing of copyrighted music. Others, like Hollywood’s MPAA (Motion Picture Association of America) are also starting to get involved and are taking legal action against the music and movie download sites.

It will not be easy to shut down these download sites. Especially since the Internet has no borders, it will be an almost impossible task, to get all the countries in the world to agree on how to legislate Internet downloading.

Another attack on music and movies download sites comes from, what I call, seasoned Internet users. They claim these download sites are a scam, because they charge for something you can get for free.

Well, you could get it for free, that is true. These download sites provide you with soft ware to search for and download files from the Internet. They provide you with software to burn these files on a cd should you wish to do so.

All this software is available for free on the Internet, but for an Internet novice it could be a daunting task to look for this kind of soft ware, to decide which soft ware to use, how to use it.On top of that they have to make sure that they do not download spy ware, ad ware or what ever. Joining a download site and have all the info in one place is not a bad option for most of them. Another advantage is the fact that these download sites provide a help desk for their members.

Is it a scam if you provide info that people could get for free elsewhere?

Consider this.

You are looking for a telephone number, so you look it up in the phone book.

Say you do not have the right phone book, you can go out looking for it.

You probably can find this free info in the library.

You can also pick up the phone and ring an information service.

They will provide you with this free info and they will charge you for it.

So, is this information service a scam?

I do not think so, and I also do not think that the music and movies download sites are a scam.

Provided of course that they tell you what you can expect from them before you sign up with them, and that they deliver on this promise

If you want to join a download site, chose one that gives a guaranty that you can have your money back if not satisfied.

Once you have joined, test out everything, especially their helpdesk.

If you have no questions, ask them a few things you know already, just to test their response.

And last but not least, do not hesitate to charge back your money if you are not completely satisfied.

Why Do Software Makers Spend Millions Of Dollars Each Year To Protect Their Software With Copyright Protection

July 19th, 2009 at 10:26am Under copyright protection

I can’t understand why they spend so much money each year. Every time a new copyright comes out, its hacked within a few hours. DVD copyright protection is easily defeated with DVDFab Platinum. Every time a new copyright protection is out, DVDFab is all over it. Software copyright protection is easily defeated with alcohol 120%. You can even download patches to play the software without a cd/dvd. They serial code is also useless because their are keygens and patches to get around that. Video game copyright is the most successful because in order to play games you have to modify the console with a modchip for the games to play. Most people don’t want to do something to their console that could damage it.

A Software Registered In Germany Under Copyrights Act Is Good For India As Well ?

July 16th, 2009 at 04:27pm Under copyright act

Dear All,
I wish to know, If as software registerd in Germany under copy rights act holds good for Inida as well. Or we need to register the same in India as well ?
Thanks
Alok

Your Intellectual Property Deserves Iron-clad Security From Your Outsourcer

July 15th, 2009 at 12:41pm Under intellectual property

Insight

Intellectual property security breaches are making headline news with alarming frequency and creating headaches for consumers, businesses, governments and institutions everywhere. The specter of identity and intellectual property theft hangs over everyone’s head, brought home by incidents like the following:

? Two 200-MB files containing incomplete portions of the source code for Windows 2000 and Windows NT operating systems were stolen and posted to the Internet. An individual downloaded the code and offered it for sale. An undercover FBI agent bought the code and the seller was indicted under the U.S. Economic Espionage Act. 1

? The over $20 billion video game industry shook when news came out about the hacking of the computer network and Internet-leaking of the source code at Valve Software, the maker of the mega-popular Half-Life 2, a first-person shooter (FPS) video game. The financial ramifications of source code already licensed to developers, but now available for free on black-market sites, is something no executive wants to encounter. 2

? The U.S. Federal Trade Commission (FTC) announced that consumer data broker ChoicePoint, Inc., will pay $10 million in civil penalties and provide $5 million for consumer redress to settle FTC charges that its security and record-handling procedures violated consumers’ privacy rights and federal laws. Because of the security breach, at least 800 cases of identity theft have been reported. 3

Today companies must employ safeguards across the entire enterprise to ensure that intellectual property is secure. As outsourcing vendors are increasingly being entrusted with a company’s intellectual property in order to leverage cost savings and productivity gains, these vendors must also fall under the firm’s security checks. It is imperative that companies scrutinize every aspect of an outsourcer’s security protocols to protect valuable intellectual property.

What can companies do?

When intellectual property is breached or stolen, any business is in for a rocky ride. All too often, a company believes its security measures are satisfactory but then something happens and it becomes evident that what security was in place was not good enough. And “not good enough” is unacceptable if your company’s intellectual property is at stake. Like the proverbial locking the barn door after the horse already bolted, improving security after data theft happens is too late.

When companies outsource their valuable intellectual property, the potential for increased risk is there. Although the governments of China and India have made strides to address copyright infringement, clearly work still needs to be done. The wheels of justice turn slowly and outsourcing vendors cannot rely on government agencies to police intellectual property. Unfortunately, not all outsourcers value their customers enough to invest in state-of-the art security, nor do they have a culture where integrity is at the core.

As part of the due diligence process when selecting an outsourcing vendor, organizations should determine that the outsourcing vendor adheres to the highest security standards to ensure their valuable intellectual property is safe and specific security arrangements should be detailed in the contract. A reputable outsourcing vendor would respect and applaud these efforts.

Practice IP-safe outsourcing.

It is critical that an offshore outsourcing company invest and employ a multi-faceted safe-guard approach to protect the client’s critical business information. A good vendor regards their clients’ intellectual property as central to their own business success. To achieve maximum intellectual property protection, Long Circle recommends that, as part of the security due diligence process, a company examines how an outsourcer addresses the following areas.

? Weak links: Unethical or unsuspecting employees

Unethical employees are an obvious risk to vulnerable data. Development departments everywhere have to be on guard to ensure that back-door code doesn’t slip by, ensure “do not enter” safeguards are in place so hackers can’t get in, as well as have “does not leave the premises” protection in place so employees can’t steal intellectual property. However experts caution that yet another serious security challenge faces corporations today: social engineering.

Mobile phone accounts of 400 T-Mobile customers – including socialite Paris Hilton’s Sidekick II device — were compromised by hackers. Hilton’s videos, personal phone numbers of her celebrity friends and messages immediately hit Internet sites, as well as provided fodder for late night TV monologues. According to a story reported by the Washington Post, a hacker posing as a T-Mobile employee obtained access to security information that was provided by an unsuspecting employer via a phone call. The practice of social engineering – tricking someone with legitimate access to restricted data to reveal confidential information – underscores the need to train employees to guard against inadvertently giving away sensitive data over the phone, in person, or in public.

? Secure the perimeter

Intellectual property should be locked in a remote site which has a strong security defense against unwanted access. The building itself, the entrance, and the sensitive areas should be guarded to ensure end terminals cannot be tampered with. In addition, a bag check policy should be applied to employees and guests alike: no data copying device can be brought in the door and no data can leave the premises. Protocols should include measures such as guest and contractors sign in when they enter the premises, wear identification badges, are always accompanied by designated employees, and access is limited and monitored.

? Many eyes

The outsourcer should have a culture where each employee takes security, privacy, and integrity to heart. Security is about patrolling the beaches. Privacy is about keeping information in only the right hands. Integrity is about demonstrating the proper care, behavior, and attitude towards protecting the client’s intellectual properties. Alert and vigilant employees are one of the best guards against threats to a client’s intellectual property.

? Separate and secure

The confidential information of each client should be physically segregated. The client’s software and hardware design should be stored on secured servers that can only be accessed by authorized personnel and network traffic should be contained on a dedicated Ethernet network (LAN).

In addition, development teams should work in physically separate areas with restricted access. As a general policy, proprietary client information should not be shared between employees who work on separate teams; violation should a result in severe consequences.

? Stops leaks

It goes without saying that background checks should be conducted on all employees. An outsourcer should enforce a strict policy that forbids any employee to remove, copy, print, or transmit any data and the physical plant should support the policy. Computers that handle client information should be physically bolted down, stripped of all copying devices and external device interfaces, and connected to an isolated LAN that allows only traffic destined to pre-programmed, legitimate addresses. Although employees have e-mail and Internet access; but there should be no Internet access on any client-dedicated workstation.

Conclusion

IP-based businesses now represent the largest single sector of the U.S. economy and, according to the U.S. Commerce Department, intellectual property theft costs U.S. businesses an estimated $250 billion per year and 750,000 American jobs.

An outsourcer is not only tasked with R&D development, but equally important, is expected to keep that intellectual property safe. No company can afford to do business with an outsourcing vendor that bypasses or takes shortcuts with security. As a company moves its intellectual property offshore, it must take care that security is not left behind.

About Long Circle

Long Circle provides outsourced engineering services to companies whose products and services rely on embedded software and hardware technology. Long Circle and the Long Circle China Center of Excellence enables U.S. companies to reduce costs, increase engineering bandwidth, and broaden market reach by providing low-risk, strategic access to China’s engineering talent, manufacturing industry, and emerging markets. To learn more about Long Circle, visit http://www.longcircle.com.