Full text of Section 3(k) relating to software patents

For those who are too busy/lazy to go through the Draft Patent Manual, here is the full text of 3(k) which falls under Chapter IV titled, "Inventions not Patentable."

3(k) A mathematical or business method or a computer programme per se or
algorithms are not patentable.

4.11.1 A computer implemented invention mean any invention the performance of
which involves the use of computer, computer network or other
programmable apparatus, or an invention one or more features which are
realized wholly or partially by means of a computer programme/ programmes.

4.11.2 Computer programmes are a set of instructions for controlling a sequence of
operations of a data processing system. It closely resembles a mathematical
method. It may be expressed in various forms e.g., a series of verbal
statements, a flowchart, an algorithm, or other coded form and maybe
presented in a form suitable for direct entry into a particular computer, or may
require transcription into a different format (computer language). It may
73 merely be written on paper or recorded on some machine readable medium
such as magnetic tape or disc or optically scanned record, or it maybe
permanently recorded in a control store forming part of a computer.

4.11.3 If the patent application relates only to a machine i.e., hardware based
invention, the best mode of operation may be described along with the
suitable illustrations. However, in the case of a process related inventions ,
the necessary sequence of steps should clearly be described so as to
distinguish the invention from the prior art with the help of the flowcharts.
The source/pseudo/object codes may be incorporated in the description
optionally.

4.11.4 In order to distinguish the invention from the prior art, relevant prior art is
also required to be given in the specification. It is always essential to analyze
the invention in the light of what is described and the prior art, in order
to identify the contribution to the art and hence determine whether this
advancement resides in, or necessarily includes, technological features and
technical application or is solely intellectual in its content. A hardware
implementation performing a novel function is not patentable if that particular
hardware system is known or is obvious irrespective of the function
performed.

4.11.5 Applications related to computer inventions may broadly fall under the
following categories:
(a) Method/process:
(b) Apparatus/system:
(c) Computer program product.
The following aspects should be looked into while dealing with such applications.

4.11.6 The method claim should clearly define the steps involved in carrying out the
invention. It should have a technical character. In other words, it should solve
a technical problem. The claims should incorporate the details regarding the
mode of the implementation of the invention via. hardware or software,
for better clarity. The claim orienting towards a “process/method” should
contain a hardware or machine limitation. Technical applicability of the
software claimed as a process or method claim, is required to be defined in
relation with the particular hardware components. Thus, the “software per se”
is differentiated from the software having its technical application in the
industry. A claim directed to a technical process which process is carried out
under the control of a programme (whether by means of hardware or
software), cannot be regarded as relating to a computer programme as such.
For example, “a method for processing seismic data, comprising the steps of
collecting the time varying seismic detector output signals for a plurality of
seismic sensors placed in a cable.” Here the signals are collected from a
definite recited structure and hence allowable.

4.11.7 The apparatus claim should clearly define the inventive constructional
hardware features. The claim for an apparatus should incorporate a “process
limitation” for an apparatus, where “limitation” means defining the specific
application and not the general application. As a general rule, a novel solution
to a problem relating to the internal operations of a computer, although
comprising a program or subroutine, will necessarily involve technological
features of the computer hardware or the manner in which it operates and
hence may be patentable. For example, in a computer comprising means for
storing signal data and a first resistor for storing data, the clause starting with
“for” describes the function or process carried out by the apparatus, and form
the part of “process limitation” here.

4.11.8 The claims relating to software programme product are nothing but computer
programme per se simply expressed on a computer readable storage medium and
as such are not allowable. For example, if the new feature comprises a set of
instructions (programme) designed to control a known computer to cause it to
perform desired operations, without special adoption or modification of its
hardware or organization, then no matter whether claimed as “a computer
arranged to operate etc” or as “a method of operating a computer”, etc., is not
patentable and hence excluded from patentability. The claim might stipulate that
the instructions were encoded in a particular way on a particular known medium
but this would not affect the issue. e.g., A program to evaluate the value of PI or
to find the square root of a number are held not allowable. An invention
consisting of hardware along with software or computer program in order to
perform the function of the hardware may be considered patentable. e.g.,
embedded systems.

4.11.10 A mathematical method is one which is carried out on numbers and
provides a result in numerical form (the mathematical method or
algorithm therefore being merely an abstract concept prescribing how to
operate on the numbers) and not patentable. However, its application may
well be patentable, for example, in Vicom/Computer-related invention
[1987] 1 OJEPO 14 (T208/84) the invention concerned a
mathematical method for manipulating data representing an image, leading
to an enhanced digital image. Claims to a method of digitally filtering data
performed on a conventional general purpose computer were rejected,
since those claims were held to define an abstract concept not
distinguished from a mathematical method. However, claims to a method of
image processing which used the mathematical method to operate on
numbers representing an image can be allowed. The reasoning was that the
image processing performed was a technical (i.e. non- excluded) process
which related to technical quality of the image and that a claim directed to a
technical process in which the method used does not seek protection for
the mathematical method as such. Therefore the allowable claims as such
went beyond a mathematical method.

4.11.11 The patent application No.558/DELNP/2005 related to method of operating
the credential management processor. This was refused as it was found to be
attracting the provisions of section 3(k) as the alleged method was relating
to ‘receiving ‘, ‘de-referencing’ and ‘storing’ being purely a computer
implemented software application. As well as the enhancement of security
as claimed in method claims was already disclosed in the cited document
and is obvious to a person skilled in the art.

The ghost of software patents is back!

Life is never easy for an open source evangelist. The OOXML drama came to a close on 2nd April 2008 and we were on to our next issue -- software patents. The Draft Patent Manual might end up bringing software patents through the back door. this would be surprising because the Indian parliament explicitly rejected software patents in the Patent Amendment Act 2005. In this blog, I am including extracts from a letter that I sent to the Patent Office on 11th April 2008. The deadline for comments was 15th April 2008.

Software patents in India as per Clause 3(k) of the Indian Patent Act

We find that the Draft Patent Manual seeks to introduce software patents and we believe that this is not in consonance with the current legal situation India where Clause 3(k) of the Indian Patent Act clearly says,

“A mathematical or business method or a computer programme per se or algorithms are not patentable”.

You may recall that the Patent Amendment Act 2005 sought to introduce software patents. The amendment proposed in the Patent Amendment Act 2005 for Clause 3(k) was,

“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.”

However, this amendment was rejected by the Indian Parliament, which chose to retain Clause 3(k) as it is. On reviewing the Draft Patent Manual, we find that it seeks to make technical applications of software patentable. As you can see from the above, this approach was explicitly rejected by the Indian Parliament. The relevant section of the Draft says:

Draft Manual 4.11.7
4.A mathematical method is one which is carried out on numbers and provides a result in numerical form (the mathematical method or algorithm therefore being merely an
abstract concept prescribing how to operate on the numbers) and not patentable. However, its application may well be patentable, for example, in Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the invention concerned a mathematical method for manipulating data representing an image, leading to an enhanced digital image. Claims to a method of digitally filtering data performed on a conventional general purpose computer were rejected, since those claims were held to define an abstract concept not distinguished from a mathematical method. However, claims to a method of image processing which used the mathematical method to operate on numbers representing an image can be allowed. The reasoning was that the image processing performed was a technical (i.e. non- excluded) process which related to technical quality of the image and that a claim directed to a technical process in which the method used does not seek protection for the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.

Open Source Software and software patents from a national perspective

We would also like to add that the Government of India has identified open source software as a strategic tool for e-governance and for bridging the digital divide in India. The Department of IT's 11th Five Year Plan (2007-2012) says,

“If computer adoption has to reach from current 1% of population to say 5% in next five years, we have to seriously pursue some other route, viz., that of Free/Open Source Software (FOSS).”

The National Knowledge Commission, in a report submitted to the Prime Minister of India, says,

“Because of the enormous size and scope of the E-governance effort in India and because of the availability of globally recognized software talent of Indians, we must actively encourage open source software implementations and open standards wherever possible.”

Open Source Software is built in a collaborative manner by developers spread across the world who share source code and build upon each other's works. In his book, “The Success of Open Source,” the noted political scientist, Prof. Steven Weber, Director of the Institute of International Studies, University of California, Berkeley, says,

“The conventional notion of property is the right to exclude. Property in open source is configured fundamentally around the right to distribute, not to exclude.”

The GNU General Public License, which is used by almost 60 percent of open source software explicitly states that if you modify and redistribute source code licensed under the GPL, you have to share the resultant changes with others. This legal framework has lead to enormous innovation and technology collaboration on a scale that's never been witnessed before. For example, the Linux operating system, which began life in September 1991 has now grown into more than 100 million lines of code.

The freedom to modify the source code and share the changes has benefited India immensely. Many linguistic groups have localized the Graphical User Interface of Linux into more than 11 Indian languages so that non-English speakers can also benefit from the power of digital technology. Open Source Software like Orca help the visually handicapped use computers with ease and skill. Many national mission-mode projects in e-governance make extensive use of open source software. In almost all fields of IT, open source software has emerged as a powerful alternative to expensive, proprietary software, which have restrictive licensing schemes. Developing countries, across the world have therefore embraced open source software with open arms in light of its strategic long-term benefits.

It is for these reasons that the respected technologist and past president of India, Dr. APJ Abdul Kalam, said,

“In India, open source code software will have to come and stay in a big way for the benefit of our billion people."

Open source software is one of the most dynamic, innovative sectors of the global economy, but the patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.

Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus, a risk of litigation exist for every open source project, and the potential cost of patent litigation can be ruinous, especially for startup companies.

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Despite the hindrances of the global patent system, open source continues to expand at an exponential rate. One can only imagine how that expansion would accelerate if the braking effect of the patent system were lifted.

Given the fact that (a) that Indian legislators have clearly chosen to exclude software from the list of patentable inventions (b) that open source software is important to India's long-term strategic interests, and (c) there is a growing global outcry against software patents, we hereby request you to ensure that the Draft Patent Manual reflects the will and intent of the Indian Parliament.

LETTER ENDS

We will keep track of the developments around the Draft Patent Manual. This might prove to be a challenging task because I hear that there is a powerful pro software patents lobby at work. Keep watching this blog.