Is proprietary software simply a pig skilfully dressed up to make the unwitting think it has intrinsic value?
The answer is 'yes', and here's why.
In any free market, the price of a commodity, over time, falls close to that of its marginal cost of production. A number of things can interfere with this process, the most damaging being the existence of a monopoly, but in the absence of market distortion this rule always holds true.
Thursday, November 13, 2008
Proprietary software and "Lipstick on a pig"
Mark Taylor of Sirius Corporation has written a very interesting article that explains in economic terms why proprietary software is doomed.
Tuesday, November 11, 2008
Global Patent troll comes to India
One news item that set the alarm bells clanging in my head was the Economic Times report that Intellectual Ventures has signed up an agreement to agreement to buy patents from the Indian Institute of Science, Bangalore and plans to tie up with IIT Madras and other such institutes. I don't know the nature of these agreements, but if IISc and others are entering relinquishing significant control over these patents, this would amount to selling off the crown jewels. Neo-colonialism is the first word that comes to my mind after reading this report.
Extracts from the report:
We will have to keep a close watch on this company.
Extracts from the report:
"The company owns over 20,000 patents world-wide related to everything from lasers to computer chips and is now eyeing the 15,000 patents filed every year by various research
institutes in India."
"The fund is controversial in the US as it’s seen as monopolising inventions and using its clout to sign expensive patent-licencing agreements."
We will have to keep a close watch on this company.
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, November 05, 2008
Barack Hussein Obama's secret sauce: Open Source!
Doc Searls has a great article on how Obama's campaign has effectively used open source and social networking.
No prizes for guessing what McCain used :-) Now, I am even more of an Obama admirer!
"The stack is LAMP: Linux, Apache, MySQL, PHP. On the back end we use lots of open source libraries and tool kits. We use YUI, and Ext, which are javascript UI libraries. One of our developers is the creator of the Horde project, which is a big open source PHP framework."
No prizes for guessing what McCain used :-) Now, I am even more of an Obama admirer!
Friday, October 31, 2008
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.
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.
Friday, September 19, 2008
India's Draft Policy on Open Standards for e-Governance released
India's Department of IT has released the Draft Policy on Open Standards for e-Governance. For the open source community, this is a significant
step forward because this policy can eliminate the barriers that we have faced due to proprietary standards like .doc, .mpg and others.
Once this policy is finalized, it will become a part of all future Requests for Proposals (RFPs). A committee has been constituted to review standards on the basis of the mandatory charecteristics required by this policy. The committee's report shows that according to this policy, ODF, OGG, W3C standards etc are some of the standards that meet all the mandatory criteria for open standards. OOXML, MPEG etc *do not* meet these mandatory criteria.
The most controversial aspect of this policy was whether multiple standards should be allowed for the same purpose. We have been vocal in arguing vendors should collaborate on standards and compete on their implementation because this is the best outcome for industry and consumers and the Draft Policy has accepted this point.
step forward because this policy can eliminate the barriers that we have faced due to proprietary standards like .doc, .mpg and others.
Once this policy is finalized, it will become a part of all future Requests for Proposals (RFPs). A committee has been constituted to review standards on the basis of the mandatory charecteristics required by this policy. The committee's report shows that according to this policy, ODF, OGG, W3C standards etc are some of the standards that meet all the mandatory criteria for open standards. OOXML, MPEG etc *do not* meet these mandatory criteria.
The most controversial aspect of this policy was whether multiple standards should be allowed for the same purpose. We have been vocal in arguing vendors should collaborate on standards and compete on their implementation because this is the best outcome for industry and consumers and the Draft Policy has accepted this point.
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.
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.
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.
Friday, July 18, 2008
ISO/IEC and OOXML: The judge, the jury and the hangman
Those who have been following the OOXML issue would have noted that India was among the four countries that had appealed against the ISO/IEC approval of OOXML. The next step in this drama (charade?) is that the heads of ISO and IEC have replied to the four countries. The replies
essentially dismiss the claims made by the four countries with studied nonchalance. I am not surprised. After all, if I was asked to pass judgment on my own goofups, I am not likely to hang myself. Enough has been said on how Microsoft has compromised ISO on this blog and others and I will not add to this.
The ISO Secretary General, Mr Alan Bryden was in India in December 2007 and I had asked him what he thought of the controversy surrounding the OOXML process. His answer was that ISO is a democratic organization and it will emerge stronger from this controversy. Very glib answer but an absolute and shameful lie. Just two months after Mr. Bryden's false statement ISO held a Ballot Resoution Meeting held under such apalling circumstances that we (the LITD15 committee of Bureau of Indian Standards) were forced to send a set of suggestions to ISO on how the BRM should be conducted. As we Indians are wont to do, the letter was exceedingly polite, but in retrospect, this politeness is wasted on the mafia that runs ISO.
The larger question for for policy makers in emerging markets is : Who exactly is ISO/IEC answerable to? If they interpret the rules and game the system to accommodate a big, powerful corporate interest, then maybe it is time that emerging economies created a standards body of their own with transparent governance structures and a firm commitment to royalty-free open standards. The only way that emerging countries can protect themselves against naked greed and avarice of a corporate entity in quest of super-profits and the institutions they have captured is to collaborate with each other to ensure justice. We must also send out a strong message to these greedy corporations that we have zero tolerance for such attempts at digital colonization.
We Indians have had enough of the East India Companies looting our country, and leaving a trail of bloodshed, poverty and famine behind. We have had enough of India being a soft state. If these companies want to sell in India, they better follow Indian rules and obey Indian laws and stop acting against the interests of the people of India. If you think those are harsh words, I'd recommend reading Prof.DB Phatak's blog and his detailed commentary on Microsoft's activities around OOXML. As they say, there is no smoke without fire and if a respected professor like Prof.Phatak is so furious, imagine what caused it.
Creating an alternate standards organization will be an exceedingly tough task, but standards are not an area where compromises can be tolerated. Standards govern our lives in a million different ways and the common man and woman deserve to have their standards created in an open, transparent manner that benefits everyone.
Let me know what you think of the idea of creating an open standards organization for the benefit of the emerging economies.
essentially dismiss the claims made by the four countries with studied nonchalance. I am not surprised. After all, if I was asked to pass judgment on my own goofups, I am not likely to hang myself. Enough has been said on how Microsoft has compromised ISO on this blog and others and I will not add to this.
The ISO Secretary General, Mr Alan Bryden was in India in December 2007 and I had asked him what he thought of the controversy surrounding the OOXML process. His answer was that ISO is a democratic organization and it will emerge stronger from this controversy. Very glib answer but an absolute and shameful lie. Just two months after Mr. Bryden's false statement ISO held a Ballot Resoution Meeting held under such apalling circumstances that we (the LITD15 committee of Bureau of Indian Standards) were forced to send a set of suggestions to ISO on how the BRM should be conducted. As we Indians are wont to do, the letter was exceedingly polite, but in retrospect, this politeness is wasted on the mafia that runs ISO.
The larger question for for policy makers in emerging markets is : Who exactly is ISO/IEC answerable to? If they interpret the rules and game the system to accommodate a big, powerful corporate interest, then maybe it is time that emerging economies created a standards body of their own with transparent governance structures and a firm commitment to royalty-free open standards. The only way that emerging countries can protect themselves against naked greed and avarice of a corporate entity in quest of super-profits and the institutions they have captured is to collaborate with each other to ensure justice. We must also send out a strong message to these greedy corporations that we have zero tolerance for such attempts at digital colonization.
We Indians have had enough of the East India Companies looting our country, and leaving a trail of bloodshed, poverty and famine behind. We have had enough of India being a soft state. If these companies want to sell in India, they better follow Indian rules and obey Indian laws and stop acting against the interests of the people of India. If you think those are harsh words, I'd recommend reading Prof.DB Phatak's blog and his detailed commentary on Microsoft's activities around OOXML. As they say, there is no smoke without fire and if a respected professor like Prof.Phatak is so furious, imagine what caused it.
Creating an alternate standards organization will be an exceedingly tough task, but standards are not an area where compromises can be tolerated. Standards govern our lives in a million different ways and the common man and woman deserve to have their standards created in an open, transparent manner that benefits everyone.
Let me know what you think of the idea of creating an open standards organization for the benefit of the emerging economies.
Friday, June 13, 2008
CC book lasts for four week on NYTimes Bestseller List
This is interesting. Cory Doctorow's book, Little Brother has been on the bestseller list of the New York Times for four weeks in a row. The book is released under a Creative Commons license, which means that you can download and read it for free. If is is available for free, why would people buy it in the bookstores and send it to the NYTimes bestseller list?
Cory is a great guy and a wonderful speaker on the subject of Creative Commons and open content. I heard him speak at the first Red Hat Summit in Nashville in 2006. At the Summit, he explained that, as an author, his biggest problem was obscurity and that releasing his books under a Creative Commons license helped him overcome that.
At that time, I thought that was an interesting explanation, but this is excellent proof of what he said two years ago! I'd encourage you to listen to his 2006 talk at the Red Hat Summit and recommend that you download it in the OGG format, which is an open format.
Cory is a great guy and a wonderful speaker on the subject of Creative Commons and open content. I heard him speak at the first Red Hat Summit in Nashville in 2006. At the Summit, he explained that, as an author, his biggest problem was obscurity and that releasing his books under a Creative Commons license helped him overcome that.
At that time, I thought that was an interesting explanation, but this is excellent proof of what he said two years ago! I'd encourage you to listen to his 2006 talk at the Red Hat Summit and recommend that you download it in the OGG format, which is an open format.
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.
Wednesday, May 07, 2008
Call for volunteers: Syllabus change drive
The more I talk to my friends in industry and the free and open source
software communities, the more I am convinced that one of the most
important things we can do is to get open source software a part of the
syllabus.
One of the first things we need to make this happen is to rid the
syllabus of its proprietary bias. If you or your friends come across
examples where the syllabus mandates proprietary software, please report
it at the Syllabus Change page (thanks to Anivar for setting this up):
http://fci.wikia.com/wiki/Syllabus_Review
Wherever possible, add links to the syllabus and descriptions of the
proprietary bias in the syllabus. We will take this issue up with the
education ministry and all the major political parties in India.
Let us ensure that the next generation of Indian students grow up as an
open source generation!
software communities, the more I am convinced that one of the most
important things we can do is to get open source software a part of the
syllabus.
One of the first things we need to make this happen is to rid the
syllabus of its proprietary bias. If you or your friends come across
examples where the syllabus mandates proprietary software, please report
it at the Syllabus Change page (thanks to Anivar for setting this up):
http://fci.wikia.com/wiki/Syllabus_Review
Wherever possible, add links to the syllabus and descriptions of the
proprietary bias in the syllabus. We will take this issue up with the
education ministry and all the major political parties in India.
Let us ensure that the next generation of Indian students grow up as an
open source generation!
Friday, May 02, 2008
The Microsoft-Yahoo deal
I saw a news iterm in the papers that Microsoft may raise its bid for Yahoo. Let's face it folks, both these guys need each other. Microsoft has tried its hand in the online game through MSN, acquiring Hotmail, Slate etc and these efforts haven't added up to much. The Yahoo bid is probably its last chance (since Google is not for sale or is too expensive) to establish a significant online presence. The alternative is to go on another spending spree and revamp MSN and other online properties.
For Yahoo, there are not too many potential acquisition candidates and time is running out. At one point in time, Yahoo was *the* first Internet destination for most people, Google now holds this prime spot. Unless Yahoo comes up with some killer app that increases its market capitalization, it could see a decline in value. And value on the Internet can sometimes decline dramatically. Remember Pointcast, which was valued in billions at one point in time and was eventually sold to news Corp for a mere $7 million?
There will be a bit of haggling, Microsoft will up its price for Yahoo and both these chaps will fall into each others arms and issue feel-good press releases.
For Yahoo, there are not too many potential acquisition candidates and time is running out. At one point in time, Yahoo was *the* first Internet destination for most people, Google now holds this prime spot. Unless Yahoo comes up with some killer app that increases its market capitalization, it could see a decline in value. And value on the Internet can sometimes decline dramatically. Remember Pointcast, which was valued in billions at one point in time and was eventually sold to news Corp for a mere $7 million?
There will be a bit of haggling, Microsoft will up its price for Yahoo and both these chaps will fall into each others arms and issue feel-good press releases.
Tuesday, April 29, 2008
An Open Letter to LITD15 committee of BIS
On 20th March 2008, the LITD15 committee of the Bureau of Indian Standards voted against Microsoft's proposed OOXML standard. 29th March 2008 was the last date for participating countries to vote on OOXML. In the interval between these two dates, Microsoft went to the Prime Minister of India and alleged that this committee acted against the national interest. Fortunately, the Indian bureaucrats who met the PM did a good job of defending the committee's vote against OOXML.
Prof. DB Phatak of IIT Bombay recently wrote a mail to the LITD15 committee saying that, "In my opinion, these actions go well beyond the behavioral boundaries for a commercial entity, some of these amounting to interfering with the governance process of a sovereign country." IIT Bombay was a member of the LITD15 committee and Prof. Phatak was part of a four-member team at IIT Bombay that did a very intense review of OOXML before the institute voted against OOXML. While Prof. Phatak is a great supporter of open source, he also has a great reputation for being fair and balanced.
An e-mail I sent in response to the mail from Prof. Phatak to the LITD15 committee is given below.
Venky
Prof. DB Phatak of IIT Bombay recently wrote a mail to the LITD15 committee saying that, "In my opinion, these actions go well beyond the behavioral boundaries for a commercial entity, some of these amounting to interfering with the governance process of a sovereign country." IIT Bombay was a member of the LITD15 committee and Prof. Phatak was part of a four-member team at IIT Bombay that did a very intense review of OOXML before the institute voted against OOXML. While Prof. Phatak is a great supporter of open source, he also has a great reputation for being fair and balanced.
An e-mail I sent in response to the mail from Prof. Phatak to the LITD15 committee is given below.
Venky
Dear Prof. Phatak and my fellow committee members in LITD15,
It is a sad day for all of us when standards are created not on technical merits but through political bulldozing. In this hour of darkness, we look up to a respected teacher like you to show us the way out.
Open Standards are the foundation upon which we can build a just and inclusive information society and therefore these issues are critical for India's digital future. Today, thanks to the growth of the open source movement, users in developing countries like India have the choice of software programs that they can freely modify and deploy. This can go a long way in bridging the digital divide in India. However, proprietary standards end up nullifying these advantages.
For example, I can download and implement a Linux desktop on my PC, but to legally acquire the rights to use proprietary multimedia codecs, I will have to pay a royalty of 28 Euros (Rs 1,680) [1]. This payment adds no value to the local economy, increases costs for the end users and widens the digital divide, especially in developing countries like India. Such proprietary standards also violate the principle that standards should belong to all of humanity and should not be the monopoly of an individual or a corporation or a group of organizations acting in concert.
What I have observed is that clever organizations are trapping people into using their proprietary standards by:
1) Driving global adoption of *their* "standards"
2) Filing a thicket of patents around these "standards"
3) Collecting royalties for usage of these "standards" or threatening lawsuits against those who do not comply
How this scenario plays out in real life can be seen from the Joint Photographic Experts Group (JPEG) patent case. JPEG, as most users of digital photographs know, is a popular format for photographic images that has been widely adopted by makers of digital cameras, camcorders, PDA, cellphones and other devices. In 2002, Forgent, a company that owned Patent No. 4,698,672 in the US, ambushed the industry by suing 31 major hardware and software vendors, including Dell and Apple Computers. The company alleged that these companies infringed on its claim to an algorithm used in the popular JPEG picture file format. It is reported that Forgent's legal assault earned it $150 million. Forgent was finally brought to its heels by the Public Patent Foundation that challenged and overturned Forgent's claims on the basis of prior-art.
Dan Ravicher of the Public Patent Foundation who fought the JPEG patent case points out that, in the US, where most of these battles are fought, it costs only 39 cents to send a postcard with a cease and desist notice to an alleged patent infringer, the defendant would have to spend $40,000 to get a lawyer's opinion and anywhere from $2-4 million to defend a case. I do not have comparative numbers for India, but I am sure that no one on this committee relishes seeing the insides of a courtroom.
Therefore, I hope my fellow committee members will agree with me that our first responsibility as professionals who represent India at ISO is to ensure that we do not support such proprietary standards. At this point, it is also important to point out that all ISO standards are not necessarily open standards that empower users with the freedom to encode and decode their data. India has one vote at ISO but it is an important vote and we must exercise it to ensure the creation of genuine open standards at this global forum.
I therefore propose to my fellow committee members that the first bar that any standard must pass before it gets India's approval is that standards should be completely free of any IPR issues, royalties, patent encumberances, trade secrets etc. The proposed standard should give unfettered freedom to users to encode and decode their data in that format. If, and only if, it clears this bar should it be allowed to reach the next stage where it is evaluated on technical merits.
On the OOXML Issue
==================
I am given to understand that on 27th March 2008, the honorable Prime Minister of India held a review of this committee's "Disapprove" vote on OOXML. I am given to understand that Microsoft's submission to the Prime Minister's Office was that the committee's vote is against the national interest.
As someone who has worked over the last ten years to localize Linux to Indian languages and take IT to the 95 percent of Indians who do not speak English, I find such a comment deeply disappointing. Due to my involvement in Indian language computing, I was introduced to the transformative power of open source software and open standards like HTML. To me, the vision of building an inclusive information society is paramount and open standards are the foundation of this dream.
As a committee member, I would like to place on record my deep disappointment at the fact that Microsoft chose to question the decision of this committee at the highest office of our country. For over a year, we have reviewed the proposed standard with a fine tooth comb. Every opportunity was given to Microsoft to put their points across. At every meeting they brought a disproportionate number of participants along; some of these participants were not even Indian nationals. I think the committee as a whole was very courteous in accommodating all this but drew the line when this began to detract from the functioning of the committee. The only words that came to my mind when I heard that Microsoft's complaint had prompted the Prime Minister of my country to review this committee's decision was "stabbed-in-the-back." This was a great disservice to this committee and the country and I hope this never happens again.
It is to the credit of our policy makers, the Department of IT, the Ministry of Consumer Affairs and the Bureau of Indian Standards that the sanctity of this committee's decision was upheld. Therefore, I wish to second Point # 3 made by Prof. Phatak and would like to place on record Red Hat's appreciation for the exemplary transparency with which the proceedings of the committee were conducted. This is in sharp contrast to other countries where the decisions of the technical committees were overruled due to political considerations. In the context of what has happened globally, the conduct of Indian policy makers is all the more admirable and has done our country proud. We would therefore like to than our oft-criticized policy makers from the bottom of our hearts.
Standards cannot (and should not) be created in a technical vaccum. Without a moral and ethical framework, we cannot create standards that benefit humanity. Mahatma Gandhi summed it up best when he said that, “Real swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all.” I believe that this committee should be focused solely on the user's swaraj (freedom) to encode and decode their data.
At times like these we look up to our teachers to provide us with a strong ethical and moral framework and be a guiding light. I therefore look forward to your mail and to your constructive suggestions on the way forward.
Regards,
Venky
PS: I have expressed some deeply held personal beliefs in this e-mail and it is entirely possible that I may be wrong in many places. However, I hope that we can start a dialogue around creating genuine open standards and India's role in creating standards that benefit the world.
[1] See http://tinyurl.com/2n4aox and https://shop.fluendo.com/
Wednesday, April 23, 2008
Red Hat CEO on the "economics of abundance"
Red Hat's CEO, Jim Whitehurst was interviewed by Bangkok Post recently. I liked his comments on the "the economics of abundance" versus the old notion of "intellectual property."
Red Hat's CEO spoke of "the economics of abundance" that applied to software, and how, in the digital age, when intellectual property could be copied for free the question was "How do you build economics around that?" And he noted how the use of "old-world concepts" such as "it's mine and it's property," by calling it "intellectual property," built on an old-world sense that it had value and cost a lot to duplicate.
Emphasising that Red Hat was a very strong believer in intellectual property rights, he said that in the old-world, with physical things, you couldn't give away a product for free to try out, "but if you think about the economics of abundance, where bits can be copied for free, why shouldn't that be a business model?
"It's kind of flipping business models on their ear," he said. "Rather than apply old-world physical products' commercial principles, let's start from scratch and say 'is there a whole new way to create value?' And that's what we think we're doing and that's pretty extraordinary too. We still have a long way to go. And I don't think that we're fully there in understanding yet. All
content, music ... how do musicians make money? Should it be using DRM, or is there another way to do it?
Wednesday, April 02, 2008
A sad day for open standards
Let me admit it--I am saddened to see that OOXML now has the ISO stamp. The open source and free software communities are motivated by the dream of building an inclusive information society. Open standards--which can be freely implemented by anyone on a royalty-free basis and are created through consensus--are the foundation of this dream.
Therefore the Open Source Foundation of India feels that OOXML is an April Fool's Day joke played on the whole world and is a very sad outcome for open standards. The manner in which Microsoft has pushed OOXML through the ISO has breached all norms of standards creation. The voting results show that emerging economies like China, India, South Africa have voted against OOXML. Due to the manner in which one organization has hijacked the standards institution, we need to ask ourselves, "Can we trust these organizations with the critical standards that India depends upon?"
China's reaction has been to create standards of its own and it is reported that they have plans of creating 10,000 of their own standards. To protect our country's interests, we will have to ask organizations like ISO to follow transparent and ethical standards creation processes. Alternately, emerging economies will have to come together to create standards institutions that cannot be hijacked by monopolistic organizations.
Those who want to know the value of open standards just have to look at the amount of innovation that has happened on the Internet and compare it to the desktop world where competition has been systematically killed off to protect monopolies. Vendor driven standards like OOXML are not open standards and the Software Freedom Law Center has cautioned open source and free software developers from implementing OOXML due to legal risks. Since open source is the most viable alternative to expensive proprietary software, the global open source community is extremely unhappy with this development.
Therefore the Open Source Foundation of India feels that OOXML is an April Fool's Day joke played on the whole world and is a very sad outcome for open standards. The manner in which Microsoft has pushed OOXML through the ISO has breached all norms of standards creation. The voting results show that emerging economies like China, India, South Africa have voted against OOXML. Due to the manner in which one organization has hijacked the standards institution, we need to ask ourselves, "Can we trust these organizations with the critical standards that India depends upon?"
China's reaction has been to create standards of its own and it is reported that they have plans of creating 10,000 of their own standards. To protect our country's interests, we will have to ask organizations like ISO to follow transparent and ethical standards creation processes. Alternately, emerging economies will have to come together to create standards institutions that cannot be hijacked by monopolistic organizations.
Those who want to know the value of open standards just have to look at the amount of innovation that has happened on the Internet and compare it to the desktop world where competition has been systematically killed off to protect monopolies. Vendor driven standards like OOXML are not open standards and the Software Freedom Law Center has cautioned open source and free software developers from implementing OOXML due to legal risks. Since open source is the most viable alternative to expensive proprietary software, the global open source community is extremely unhappy with this development.
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