Infy, TCS lock horns with Red Hat over IT Patent

Interesting news item in The Financial Express about the recent stakeholder meeting on the Draft Patent Manual. Some selected extracts:

IT majors like Infosys Technologies Ltd and Tata Consultancy Services (TCS) are opposing the open-source community's demand that the government drop a clause in the draft patent examination manual as it gives scope for software patenting under the Indian Patent Act of 2003.

The IT majors made their opposition clear at a meeting in Delhi, called by the government's department of industrial policy & promotion on Thursday. The dispute has been sparked by the draft manual that will guide patent examiners in their interpretation of the Indian Patent (Amendment) Act for software. Section 3(K) of the Act clearly says: "A mathematical or business method or a computer programme per se or algorithms are not patentable."

...

Pinaki Ghosh, the intellectual property head of Infosys, said, "We are of the opinion that software systems as well methods should be patented." Companies like Infosys want software patents along the entire software value chain from source code to software embedded in hardware. However, patenting of software is being opposed strongly by Red Hat India, the Linux based open source software company, along with science forums like the All India Peoples Science Network.

Venkatesh Hariharan, who heads Red Hat India's open source affairs, said the draft patent manual that seeks to introduce patents is not in consonance with the current legal situation. Hariharan pointed out that Section 3(K) of the Patent Act clearly says that a mathematical or business method or computer programmes per se, or algorithms, are not patentable.

He said the Patent Amendment Act 2005 had sought to introduce software patents but this was rejected by Parliament in the final version, and Section 3(k) was retained in its original shape.

"On reviewing the draft patent manual, we find that it seeks to make technical applications of software patentable. This approach was explicitly rejected by the Indian Parliament," Hariharan said. FICCI official said there has been some underlying ambiguity regarding the patenting of software with technical effect. The draft manual says that the software will be patented only if it goes into a new hardware. This FICCI is opposing this condition.

Stakeholders Meeting on the Draft Patent Manual

Yesterday, the Ministry of Commerce and Industry hosted a "Stakeholders Meeting on the Draft Patent Manual." Around 70 people attended this meeting. The audience was a mix of lawyers, industry associations like CII, FICCI etc, civil society organizations and industry.

The pro-software patent lobby was pretty aggressive about their point of view. The body language made it apparent that they had come prepared for a fight. The main points of the pro-patents lobby (loosely paraphrased, since the discussion was happening so fast) were:

1) Patents will help Indian companies compete with the biggies globally
2) Indian companies are filing for patents abroad anyway, therefore we should have patents in India too.
3) Software patents are pro-innovation and should therefore be encouraged.

Prabir Purkayastha from the Knowledge Commons and myself represented the open source community. Prabir made the point that software is a form of mathematics and that merely applying it in a specific domain like image processing should not make it patentable. He also added that such patenting would be an incorrect interpretation of Section 3(K) which says that "a mathematical or a business method or a computer program per se or algorithms are not patentable."

At this point, the discussion became pretty heated and the chair of the meeting decided to call for a separate meeting on software patents. I'll keep you updated. Meanwhile, if there are open source supporters who are who can help us with the software patents issue, please let me know. If you happen to be based in New Delhi, that's even better! We need all the help we can get.