Knowledge Commons welcomes the judgment in the Bilski case. A recent
book by Boston University professors, James Bessen & Michael J. Meurer
titled, "Patent Failure: How Judges, Bureaucrats, and Lawyers Put
Innovators at Risk," has shown that business method patents are seven
times more likely to be litigated as compared to other patents,
because it is difficult to determine the boundaries of abstract
patents categories like business method and software patents.
India has fortunately escaped the litigation riddled path followed by
America. Section 3(k) of The Indian Patent Act says that, "A
mathematical or business method or a computer programme per se or
algorithms are not patentable." This clearly indicates that Indian
lawmakers do not intend abstract ideas to be patentable. However, in
practice, several software and business method patents have been
granted and these will need to be weeded out to prevent future
litigation. Overall this judgment indicates that the pendulum is now
swinging to the other end after the permissive granting of software
patents that followed the State Street ruling in 1998.
Overall this is a good decision for the software industry and
consumers because it will reduce the risk of litigation that hangs
over users and developers of software.
Venkatesh Hariharan
Co-founder
Knowledge Commons
Update: Harsimran Singh of The Economic Times has written a report on the Bilski case. The Mumbai edition of ET has carried the report on Page 5. The report does not seem to be online yet. It quotes Som Mittal, President of NASSCOM as saying that, "The ideas and frameworks for business processes should not be patentable but the content written within those frameworks should be allowed to be copyrighted." This is a welcome statement from NASSCOM because copyright protection allows for independent invention.
In other words, if you write a piece of software and are sued for infringement in a court of law, under copyright law you can claim that you wrote that software independently without copying the other party's code. However, under patent law, "independent invention" cannot be used as a defence. We therefore believe that copyright is sufficient to protect software, whereas software patents will prevent independent invention, increase the risk of litigation and therefore hurt the IT industry.
Showing posts with label Indian software patents. Show all posts
Showing posts with label Indian software patents. Show all posts
Friday, October 31, 2008
Wednesday, August 06, 2008
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.
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.
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