The "computer programme per se" conundrum

In a previous blog entry, I had mentioned how the Draft Patent Manual interprets Section 3(k) of the Indian Patent Act in a manner that allows software patents a back-door entry. I had also mentioned in a previous post how the term "per se" in Section 3(k) which says, “A mathematical or business method or a computer programme per se or algorithms are not patentable” leaves a lot of room for mischief. Knowledge Commons has submitted an unambiguous definition for the term "computer programme per se" which would be in tune with the intent of the Indian Parliament, which deleted a proposed amendment to Section 3(k) that said, “a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms.” Prabir Purkayastha, Chairman of Knowledge Commons lead the creation of this definition. Prabir is one of the few people I know who can climb the rareified heights of strategy and also roll up his sleeves the next moment and work on nuts-and-bolts issues that need to get done. This definition would just not have been possible without him. Richard Fontana of Red Hat, Mishi Chowdhury of Software Freedom Law Center, Tahir Amin and Jaijit Bhattacharya also provided valuable inputs that went into the final submission to the Indian Patent Office that reads:

Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium. An information storage medium means any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information, other than an information storage medium that itself represents an inventive contribution to the art. A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art.

Under the foregoing definitions, a claim that merely recites software elements without any reference to hardware is per se unpatentable. If a claim recites both software elements and hardware elements, but the hardware elements amount to nothing more than reference to the components of a general purpose computer on which the software is executed, or an information storage medium in which the software is stored, such that the only possibly inventive aspect of the claim resides in the software elements, then the claim is not patentable. If the software/general purpose computer is combined with other hardware, and the inventive contribution resides primarily in the software or in the software in combination either with components of the general-purpose computer or in an information storage medium, then the claim is not patentable. If the claim recites software elements and hardware elements, and the hardware elements themselves are an inventive contribution to the art, then the claim may be patentable, provided that the claim as a whole is such that the pre-requisites of novelty, non-obviousness and utility are met.