Showing posts with label software patents. Show all posts
Showing posts with label software patents. Show all posts
Saturday, December 12, 2009
A quick visit to China
I made my first China trip last week and spent two days in Beijing. I explored the possibility of working with the Chinese open source community on policy issues of mutual interest like open standards and software patents. India and China (and other emerging economies like Brazil) are already coordinating with each other on policy issues around climate change, therefore my suggestion seemed practical to the people I met. A longer trip to China is planned for April or May and I hope to work out a more concrete action plan during that trip.
Friday, October 23, 2009
Even slaves were considered property: South African Minister
I re-read the address given by Geraldine Fraser-Moleketi (video), Former South African Minister for Public Service and Administration, at the third Idlelo Conference. This part, especially, gave me goose pimples.
We cannot be in Dakar without being painfully aware of the tragic history of the slave trade. For three hundred years, the Maison des Esclaves (Slave House) on Gorée Island, was a hub in the system of forceful transportation of Africans as slaves to the plantations of the West Indies and the southern states of America. Over the same period people were being brought as slaves from the Malay Archipelago and elsewhere to South Africa. The institution of slavery played such a fundamental role in the early development of our current global economy, that by the end of the 18th century, the slave trade was a dominant factor in the globalised system of trade of the day.It is good to remember this at a time when organizations aim to justify the privatization of knowledge and ideas under the guise that this is essential for promoting innovation.
As we find ourselves today in this new era of the globalised Knowledge Economy there are lessons we can and must draw from that earlier era. That a crime against humanity of such monstrous proportions was justified by the need to uphold the property rights of slave owners and traders should certainly make us more than a little cautious about what should and should not be considered suitable for protection as property.
In the area of software patents, this is nothing but a land grab, a conversion of was in the commons into a private enclosure.
Sunday, November 09, 2008
The practical problem with software patents
Note: An edited version of this article recently appeared in Economic Times.
The Bilski case judgment has reversed the trend of granting patents to abstract ideas in the US, and is good for software developers, says Venkatesh Hariharan
In their book, “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” Boston University professors, James Bessen & Michael J. Meurer, show that Murphy's Law (“If anything can go wrong, it will”) has been working overtime in the area of software. The authors dedicate an entire chapter to software and business method patents, which are particularly problematic because they account for almost 38 percent of all patent litigation.
The authors find that in the United States, software patents are twice as likely to be litigated as other patents while business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say, “Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable.” The authors point out that patent on abstract ideas are often subject to multiple interpretations and are therefore more ambiguous. An example of this ambiguity is the E-Data patent on "point of sale location." In the IT industry, this term is jargon for the cash register or location where the customer pays the cashier. When the US Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place. Thus, a patent filed 17 years ago when e-commerce did not exist, ended up causing several lawsuits.
The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another's patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. Thus it really is not possible to eliminate the risk of a patent infringement lawsuit.
It is well known that the U.S. has the most permissive patent system in the world. However, even in the US, there are signs that the pendulum may be swinging the other way. In the recent Bilski case, which dealt with a method of hedging risks in commodities, the US courts ruled that abstract ideas which are not tethered to a device cannot be patented. The decision reversed the 1998 State Street decision that opened the floodgates for software patents.
In the European union, a move to patent, “computer implemented inventions” was thrown out in 2005. In India, 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.” In the discussions around India's Draft Patent Manual, the interpretation of the term, “computer programme per se” has been the most contentious one. Given the lessons of history and considering the amount of litigation that software patents have created in the US, India must avoid going down the same path.
A patent is a state-granted monopoly on an invention, in return for disclosure of the idea. The original intent of the patent system was to encourage disclosure by the inventor in exchange for exclusive rights for a limited period of time to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. The regime of software patents began its major expansion in the 1980s in the US. Since then, software developers have been consistently arguing that that software is better protected through copyrights rather than patents.
Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a program, they may be liable for infringement of one of the more than 200,000 software patents in existence in the U.S. Even end-users who use software for routine, everyday activities may be liable for infringement. For example, McDonalds and 400 other entities were served notices for violating DataCard's patent on “Method for processing debit purchase transactions using a counter-top terminal system.” In another case, a company (ironically) called Beneficial Innovations, sued the New York Times, You Tube and many other media organizations for allegedly violating its patent on “Method and system for playing games on a network.” Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole.
The problem is compounded by the fact that litigation is an expensive process. Dan Ravicher of the Public Patent Foundation points out that for a patent holder to send a cease-and-desist letter, all it takes is a post card. However, that inexpensive post card sets off an expensive chain of events for the defendant who will typically pay a lawyer USD 40,000 to get a legal opinion, around USD 2-4 million in attorney’s fees if the case goes to court and many millions more if the defendant loses the case in court and is required to pay damages.
The argument in favor of software patents is that patents promote innovation. The social contract between an inventor and society was that the inventor disclosed details of the invention in return for the patent, and this disclosure would lead to future inventions. However, the history of the software industry shows that innovation flourished long before software patents came into force during the 1980s. Some of the fundamental inventions of the computer age—the Internet, compilers, spreadsheets etc--were created despite the lack of patent protection. It is therefore clear that patent protection is not necessary for innovation in the software industry.
As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The act of granting a 20 year exclusive right to profit from an idea to a private entity needs to be weighed against the cost that it imposes on society. Since software and business method patents prevent independent invention, do not function well as a system of property and lead to increased litigation, India must comprehensively reject it.
Update: Micheal Tiemann, president of the Open Source Initiative and my colleague at Red Hat has some generous praise for this article and why Indians should heed its message.
The Bilski case judgment has reversed the trend of granting patents to abstract ideas in the US, and is good for software developers, says Venkatesh Hariharan
In their book, “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” Boston University professors, James Bessen & Michael J. Meurer, show that Murphy's Law (“If anything can go wrong, it will”) has been working overtime in the area of software. The authors dedicate an entire chapter to software and business method patents, which are particularly problematic because they account for almost 38 percent of all patent litigation.
The authors find that in the United States, software patents are twice as likely to be litigated as other patents while business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say, “Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable.” The authors point out that patent on abstract ideas are often subject to multiple interpretations and are therefore more ambiguous. An example of this ambiguity is the E-Data patent on "point of sale location." In the IT industry, this term is jargon for the cash register or location where the customer pays the cashier. When the US Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place. Thus, a patent filed 17 years ago when e-commerce did not exist, ended up causing several lawsuits.
The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another's patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. Thus it really is not possible to eliminate the risk of a patent infringement lawsuit.
It is well known that the U.S. has the most permissive patent system in the world. However, even in the US, there are signs that the pendulum may be swinging the other way. In the recent Bilski case, which dealt with a method of hedging risks in commodities, the US courts ruled that abstract ideas which are not tethered to a device cannot be patented. The decision reversed the 1998 State Street decision that opened the floodgates for software patents.
In the European union, a move to patent, “computer implemented inventions” was thrown out in 2005. In India, 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.” In the discussions around India's Draft Patent Manual, the interpretation of the term, “computer programme per se” has been the most contentious one. Given the lessons of history and considering the amount of litigation that software patents have created in the US, India must avoid going down the same path.
A patent is a state-granted monopoly on an invention, in return for disclosure of the idea. The original intent of the patent system was to encourage disclosure by the inventor in exchange for exclusive rights for a limited period of time to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. The regime of software patents began its major expansion in the 1980s in the US. Since then, software developers have been consistently arguing that that software is better protected through copyrights rather than patents.
Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a program, they may be liable for infringement of one of the more than 200,000 software patents in existence in the U.S. Even end-users who use software for routine, everyday activities may be liable for infringement. For example, McDonalds and 400 other entities were served notices for violating DataCard's patent on “Method for processing debit purchase transactions using a counter-top terminal system.” In another case, a company (ironically) called Beneficial Innovations, sued the New York Times, You Tube and many other media organizations for allegedly violating its patent on “Method and system for playing games on a network.” Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole.
The problem is compounded by the fact that litigation is an expensive process. Dan Ravicher of the Public Patent Foundation points out that for a patent holder to send a cease-and-desist letter, all it takes is a post card. However, that inexpensive post card sets off an expensive chain of events for the defendant who will typically pay a lawyer USD 40,000 to get a legal opinion, around USD 2-4 million in attorney’s fees if the case goes to court and many millions more if the defendant loses the case in court and is required to pay damages.
The argument in favor of software patents is that patents promote innovation. The social contract between an inventor and society was that the inventor disclosed details of the invention in return for the patent, and this disclosure would lead to future inventions. However, the history of the software industry shows that innovation flourished long before software patents came into force during the 1980s. Some of the fundamental inventions of the computer age—the Internet, compilers, spreadsheets etc--were created despite the lack of patent protection. It is therefore clear that patent protection is not necessary for innovation in the software industry.
As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The act of granting a 20 year exclusive right to profit from an idea to a private entity needs to be weighed against the cost that it imposes on society. Since software and business method patents prevent independent invention, do not function well as a system of property and lead to increased litigation, India must comprehensively reject it.
Update: Micheal Tiemann, president of the Open Source Initiative and my colleague at Red Hat has some generous praise for this article and why Indians should heed its message.
Wednesday, August 13, 2008
Patents are not neccessary for innovation
This article of mine appeared in Financial Express in the Face2Face secion where they carry debates. The rejoinder to my article was titled, "They offer valuable property protection", but like most rhetoric on this subject, the author paints broad brushstrokes while offering very little proof of the link between patents and innovation. Some statements are misleading and I have written a comment at the end of this article.
My article is reproduced in full below.
Patents are not neccessary for innovation
The objective of the patent system is to encourage innovation. Therefore, the question is whether patents are essential to promote innovation in the software industry? The fact is that most of the far-reaching innovations in the software industry happened well before software patents became common. Word processors, spreadsheets, databases, compilers, email, the world wide web, the fundamentals of modern operating systems, the graphical user interface were all developed before software became a patentable commodity in some countries.
Another example of innovation is the Linux operating system, which runs on almost everything, from the Mars Rover, to giant supercomputers to the tiniest embedded computers. This innovation has been powered by the open source model, based on collaboration, community and the shared ownership of knowledge. Thousands of volunteers and private enterprises like Red Hat, IBM and others have contributed source code to Linux under the general public license (GPL) that gives users the freedom to modify the source code and share the resulting improvements with others.
It is estimated that the Linux kernel now has around 10 million lines of source code (the instructions that make a software program work). The commercial value of the source code in an average Linux distribution is estimated at around $8 billion. This represents an enormous wealth of knowledge that is freely available to everyone. The success of open source is clear proof that patents are not necessary for innovation in the software industry and that profit motives are not the only spur for innovation.
Having established that, let us now look at the negative impact of software patents. To do that, we need to take a slight detour into the copyright law. Any person or organisation writing software automatically enjoys protection under the copyright law. If anybody steals source code, they are liable for prosecution under the copyright laws.
However, if anybody wrote source code that ends up being similar to another person's, they can defend themselves by proving that they wrote the code independently. If software patents are allowed, this 'independent invention' argument cannot be used as a legal defense. This is because the first person that obtains the patent then has exclusive rights over the idea. While copyright protects the expression of an idea, a patent is a state granted monopoly on the idea itself. We feel that copyrights are sufficient to protect software, while patents are a treacherous landmine that will increase litigation and hinder innovation in a rapidly growing industry.
It is estimated that around 2,00,000 software patents have been granted in the US and the task of sifting through these patents is so difficult that most companies don't even attempt this task. The language of software patents is so complex that only the most masochistic software developer would spend their time reading patents.
In online shopping alone, there are more than 4,000 patents. This leaves both developers and web portals and any company that implements online shopping liable for infringement. India gave the world the profound concept of zero and the decimal system, which forms the foundation of the digital revolution. Imagine what would have happened to the IT industry if India owned the patents for these ideas! Our knowledge traditions have always held that knowledge grows by sharing and diminishes when it is held secret. Therefore, it is distressing to see our policies being cut and paste from other societies that treat knowledge as something that can be commoditised. If we want a renaissance of the great knowledge traditions of India, we must stop aping the developed economies and their thought processes. Nixing software patents in the bud would be a pretty good start.
*/The writer is corporate affairs director with Red Hat /*
My article is reproduced in full below.
Patents are not neccessary for innovation
The objective of the patent system is to encourage innovation. Therefore, the question is whether patents are essential to promote innovation in the software industry? The fact is that most of the far-reaching innovations in the software industry happened well before software patents became common. Word processors, spreadsheets, databases, compilers, email, the world wide web, the fundamentals of modern operating systems, the graphical user interface were all developed before software became a patentable commodity in some countries.
Another example of innovation is the Linux operating system, which runs on almost everything, from the Mars Rover, to giant supercomputers to the tiniest embedded computers. This innovation has been powered by the open source model, based on collaboration, community and the shared ownership of knowledge. Thousands of volunteers and private enterprises like Red Hat, IBM and others have contributed source code to Linux under the general public license (GPL) that gives users the freedom to modify the source code and share the resulting improvements with others.
It is estimated that the Linux kernel now has around 10 million lines of source code (the instructions that make a software program work). The commercial value of the source code in an average Linux distribution is estimated at around $8 billion. This represents an enormous wealth of knowledge that is freely available to everyone. The success of open source is clear proof that patents are not necessary for innovation in the software industry and that profit motives are not the only spur for innovation.
Having established that, let us now look at the negative impact of software patents. To do that, we need to take a slight detour into the copyright law. Any person or organisation writing software automatically enjoys protection under the copyright law. If anybody steals source code, they are liable for prosecution under the copyright laws.
However, if anybody wrote source code that ends up being similar to another person's, they can defend themselves by proving that they wrote the code independently. If software patents are allowed, this 'independent invention' argument cannot be used as a legal defense. This is because the first person that obtains the patent then has exclusive rights over the idea. While copyright protects the expression of an idea, a patent is a state granted monopoly on the idea itself. We feel that copyrights are sufficient to protect software, while patents are a treacherous landmine that will increase litigation and hinder innovation in a rapidly growing industry.
It is estimated that around 2,00,000 software patents have been granted in the US and the task of sifting through these patents is so difficult that most companies don't even attempt this task. The language of software patents is so complex that only the most masochistic software developer would spend their time reading patents.
In online shopping alone, there are more than 4,000 patents. This leaves both developers and web portals and any company that implements online shopping liable for infringement. India gave the world the profound concept of zero and the decimal system, which forms the foundation of the digital revolution. Imagine what would have happened to the IT industry if India owned the patents for these ideas! Our knowledge traditions have always held that knowledge grows by sharing and diminishes when it is held secret. Therefore, it is distressing to see our policies being cut and paste from other societies that treat knowledge as something that can be commoditised. If we want a renaissance of the great knowledge traditions of India, we must stop aping the developed economies and their thought processes. Nixing software patents in the bud would be a pretty good start.
*/The writer is corporate affairs director with Red Hat /*
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.
Sunday, August 03, 2008
Why software patents are harmful
When we were battling the Patent Amendment Act 2005, I had requested Lawrence Liang of the Alternative Law Forum to put together a note on why software patents are harmful. Virtually overnight, Liang and his team at Alternative Law Forum put together a position paper on software patents and their impact on the Indian industry. This is a highly recommended read for those interested in this issue.
We had forwarded this note to policy makers across the spectrum and were successful in keeping software patents off this amendment. However, the draft patent manual seeks to bring in software patents through the backdoor and we are working on ensuring this does not happen. Will keep you posted.
We had forwarded this note to policy makers across the spectrum and were successful in keeping software patents off this amendment. However, the draft patent manual seeks to bring in software patents through the backdoor and we are working on ensuring this does not happen. Will keep you posted.
Sunday, July 27, 2008
Patent Office Meeting in Mumbai on 7th August: Please attend if you can
This is a call for FOSS developers in Mumbai who are interested in the software patents issue. The Patent office has called for a stakeholders meeting on the Draft Patent Manual.
On behalf of Red Hat, I have submitted our comments on the manual.
In 2005, I was involved in the Patent Amendment Act 2005 and on behalf of Red Hat, we had made representations to policy makers on why software patents are bad for the Indian software industry. At that time, Lawrence Liang and Prashanth Iyengar of the Alternative Law Forum had done a fantastic job of putting together a position paper on this issue virtually overnight. Happily, our lobbying was successful and software was kept out of the Amendment. What makes me hopping mad is that the Draft Manual seeks to bring in through the backdoor, something that was explicitly rejected by the Indian parliament. To say the very least, this is a very dubious practice.
Interestingly, Infosys and TCS are in favor of software patents. Those who followed the OOXML fight on this blog would know that both these organizations had voted in favor of Microsoft's OOXML proposal. If there are articulate FOSS developers in the Mumbai LUG, I would request them to be present at the 7th August 2008 meeting and explain to the group why software patents are against the interest of the developer community.
On behalf of Red Hat, I have submitted our comments on the manual.
In 2005, I was involved in the Patent Amendment Act 2005 and on behalf of Red Hat, we had made representations to policy makers on why software patents are bad for the Indian software industry. At that time, Lawrence Liang and Prashanth Iyengar of the Alternative Law Forum had done a fantastic job of putting together a position paper on this issue virtually overnight. Happily, our lobbying was successful and software was kept out of the Amendment. What makes me hopping mad is that the Draft Manual seeks to bring in through the backdoor, something that was explicitly rejected by the Indian parliament. To say the very least, this is a very dubious practice.
Interestingly, Infosys and TCS are in favor of software patents. Those who followed the OOXML fight on this blog would know that both these organizations had voted in favor of Microsoft's OOXML proposal. If there are articulate FOSS developers in the Mumbai LUG, I would request them to be present at the 7th August 2008 meeting and explain to the group why software patents are against the interest of the developer community.
Friday, July 25, 2008
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.
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.
Thursday, May 08, 2008
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,
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,
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:
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,
The National Knowledge Commission, in a report submitted to the Prime Minister of India, says,
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 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,
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.
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.
Monday, June 11, 2007
Eben, Kerala and other issues
I had a very long chat with Eben Moglen last week and had gone down to Delhi in this heat wave to meet with him. On Saturday morning, when the temperature was 45 degrees centigrade, around 50 people turned up to hear him talk about the issue of software patents and Microsoft's claims that Linux violates its patents. Eben is a combative force-of-nature and I am glad he is on our side!
We spoke about a number of things that will become common knowledge once the Software Freedom Law Center unveils its plans for India. Before, coming to Delhi, Eben had spent three days in Kerala. We agreed that it was important that Kerala succeeded with Free and Open Source Software because it is one place where there is both, political will as well as grassroots support for FOSS. The plans to set up an academic center of excellence for FOSS in Kerala was another thing that we spoke about. This academy is a wonderful idea and I would love to teach there. Incidentally, I will now be speaking on open source at the IIT Bombay's course on ICT for Development.
We spoke about a number of things that will become common knowledge once the Software Freedom Law Center unveils its plans for India. Before, coming to Delhi, Eben had spent three days in Kerala. We agreed that it was important that Kerala succeeded with Free and Open Source Software because it is one place where there is both, political will as well as grassroots support for FOSS. The plans to set up an academic center of excellence for FOSS in Kerala was another thing that we spoke about. This academy is a wonderful idea and I would love to teach there. Incidentally, I will now be speaking on open source at the IIT Bombay's course on ICT for Development.
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