Moving on from Red Hat to Google

Last month, I moved from Red Hat to Google. After spending six-and-half years at Red Hat, it was a tough decision to make because I got to work on issues like open standards and open source that have such long-term implications for India. To tell the truth, I had also gotten into a warm comfort zone in my previous job and was wondering what to do next, after we won the open standards fight in India.

In the last year or so, there were several offers, but none of them really excited me because I was looking for a role that has a large social impact. When Google sounded me out, I thought this could be interesting because Internet penetration in India, especially the web in India languages, is one area that can have a large impact. I know that broadband, 3G, 4G etc are on their way, yadda, yadda, yadda, and Internet usage will inevitably grow, but those who have been involved in policy know that there is a great difference between having policies on paper and actually having *political will* behind those policies. For example, every politician and bureaucrat agrees that computing in Indian languages is a good idea, but our so-called software superpower of a country has not made this a reality, even as it relentlessly churns out code for the rest of the world.

Another reason for taking up Google's offer was that I'll be able to continue my involvement in open source and open standards. In some ways, it was also a good time to leave Red Hat because most of the defensive work needed to protect the open source community -- open standards, software patents etc -- have been taken care of. Apart from the FOSS non-profits like FSF and FSMI, the Indian FOSS community now has an layer of non-profits like IT For Change, the Center for Internet and Society, Knowledge Commons and others who look at FOSS from an outside-in perspective and advocate for FOSS as a social good. The setting up of the Software Freedom Law Center's India chapter has also helped give the community some sorely needed legal firepower. I feel that these developments have greatly strengthened the community.

I want to conclude by saying that I see great hope for the future, event though the current policy environment seems so bleak and depressing. is is because, in the last six-and-half years, I have had the privilege of working with many bright, passionate individuals who are working for the larger good. Some of them have left the civil service or the corporate world to work in NGOs, and most of them have the caliber to be successful entrepreneurs or business leaders but have chosen to be involved in the area of public policy. This is an exciting development that will change India's destiny.

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.

Knowledge Commons welcomes judgment in the Bilski case

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.

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.

Science Commons, Open Source Drug Discovery etc

Last Friday, January 18th, 2008, we (Knowledge Commons, Delhi Science Forum, IIT Delhi, Red Hat and Sun) organized a workshop on science policy for a very select group of 20 policy makers. Participants included members of the Planning Commission, which drafts India's Five Year Plans; the National Knowledge Commission, a high-level advisory body that reports to the Prime Minister of India, the Chairman of the Board of Governors of IIT Delhi and some of the most respected scientists in the country. The objective was to look at the Free and Open Source model of knowledge creation and examine the impact it can have on India. The highlight of the event was the session on Open Source Drug Discovery, a $34 million program to fight diseases that are prevalent in India.

Prabir Purkayastha of the Delhi Science Forum and the brains behind the event, set the ball rolling by giving a brief overview of how the patent system evolved as a trade-off between the inventor and society, with society granting a temporary monopoly to the inventor in return for disclosure of the invention, which ensured that inventors did not take their creations to the grave. He pointed out that the era of the individual inventor is over and most innovations are now done by corporations.

Prabir also pointed out that the myth about patents leading to innovations was not always true and cited the example of James Watt's patent over the steam engine which lead to 30 years of stagnation. It was only after Watt's death that the efficiency of the steam engine improved. Even during this era, collective innovation flourished as can be seen from the invention of the blast furnace and the improvements in the steam engine within the Cornish mines.

He added that science is not purely for profit and the current scenario where patents are seen as a metric of innovation could lead to a situation where sharing is hindered. This could be dangerous in areas like medicine and agriculture. In this context, the Free and Open Source model had emerged as an important paradigm that generated advances that are outside the proprietary domain. Therefore, the question in front of the group was – Can we look at alternate ways of doing research and can these be harnessed for the public good?

Prof. VS Ramamurthy, Chairman of the Board of Governors, Indian institute of Technology, Delhi and one of the veterans of the Indian scientific establishment said that knowledge is important for socio-economic development and today, knowledge has become multi-disciplinary. When multi-disciplinary groups are involved, secrecy will only increase the cost of doing research.

In science, failures are as important as successes but the patenting system encouraged only the recognition of success and not the process by which a particular result was arrived at. He said that we need to look at knowledge management in totality and examine whether answers we have been given in the past are relevant anymore. He concluded by saying that the open source model has enormous relevance for countries like India which have limited resources but unlimited human resources.

Prof. Abhijit Sen, member of the Planning Commission and one of India's leading economists asked a succinct question, “Do patents deliver?”

Prof. Sen pointed out that patents create private property through exclusion, increase the cost of communication and therefore escalate the cost of the production process in science. In areas like climate change, which involved a whole range of technologies, the free flow of knowledge was extremely important.

“Property rights are not an unalloyed virtue if the externalities are very large. If patents do incentivize, do they do so in the right manner?” he asked. Prof. Sen pointed out that two of the world's poorest countries, India and China, are now becoming more important globally and for those managing money, it becomes important to invest in these countries. Therefore, these countries should reexamine patents in light of the new realities of the commons and growing economic clout.

Dr. Samir Bramhachari, Director-General of the Council for Scientific and Industrial Research (CSIR), unveiled a $34 million plan for Open Source Drug Discovery. CSIR is one of the world’s largest publicly funded R&D organisations 38 laboratories working on a range of subjects from molecular biology to road research to Himalayan bio-resources. The Council has more than 4,000 scientists working for it at these 38 labs.

Dr. Bramhachari noted that there was very little R&D money being spent by MNCs on the typical diseases that afflict Indians because of the relatively low purchasing power in our country. At the same time, MNCs are aggressively scanning Indian academia for research being done by Indian students and adding this knowledge to their database. He also pointed out that collaborative R&D networks like Innocentive had a lot of Indians contributing to it. Therefore, he had proposed to the Indian government the creation of an Open Source Drug Discovery framework which will harness the collective minds of Indian scientists. The OSDD project will kick off by focussing initially on the Tuberculosis bacilli and the web site will be launched once CSIR finalizes the legalities of a “Pharma GPL” share-and-share-alike license.

This workshop demonstrated that there is remarkable understanding of the potential of open source within the highest echelons of the Indian policy making elite. Prof. Ramamurthy summed it up best when he said that in the government system, change is always a very slow process. However, open source is inevitable and will be the norm 10 years from now. What we can do best is to accelerate the change in favor of open source.

Videos and transcripts of this event will be uploaded soon. Thanks to Red Hat India supporting the event and covering the cost of the videos.