Delhi Science Forum Statement on Software Patents in the Amended Patents Act

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• Delhi Science Forum notes with concern the changes in the Patent Act introduced by the recent Ordinance which will allow all computer programs to be patented and not only embedded software as is being claimed. The Indian Patent Act, as modified in 2002 had made non patentable the following:
• a mathematical method or a business method or a computer programme per se or algorithms. The recent amendment instead states:
• 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; The official explanation given is that this amendment is only an expansion of the original term computer programme per se and this will allow only the patenting of any software, which is applied to control a process, plant or machines etc. However, the language of the amendment goes far beyond this explanation as it states that any computer program, which has a technical application to industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be construed as technical applications, we believe that it opens all software to patenting. By Government~Rs own admission, the only issue on which there was a time constraint was to bring in the product patent regime by end 2004 to make our Patents Law TRIPS compliant. We are not clear why software patenting has been added to the Patents Amendment in such haste when we were already fully TRIPS compliant. Surely, the Government could have placed this particular amendment in Parliament and also opened it to a national debate? The recent amendment seems to have been hastily drafted and without any debate within the software community. Copyright is automatic, there are virtually no costs associated with copyrights; patents have to be filed and filing imposes fairly high costs. If they have to be filed in a number of countries, the costs multiply. Therefore, moving from a copyright regime to a software patenting one, simply makes the cost of developing new software many times higher. After patenting was allowed in the US, smaller developers and independent software companies have been under severe attack. Large companies have the ability tie up smaller companies in costly lawsuits for years claiming patent infringement, as they already own a large number of patents. Such a patent regime would make it difficult for Indian companies in the future to break into the global software market with its own products. In Europe, there is a huge opposition to software patenting, with small business, leading scientists, and economists opposing this measure. The software community, particularly the EU Open Linux community, have said that it would be a massive blow for developments such as open source software. Software patenting in EU came up when the European Commission put forward a Directive in February 2002 on the Patentability of Computer-implemented inventions. A number of countries in EU have opposed the directive, the latest being Poland and this has led to its repeated deferment. In this Directive, only software can be given patent protection, which a) has significant technological contribution (not just technical application) and b) is defined with a reference to a physical environment. It should be noted that the Directive does not aim to make it possible to patent computer programmes - either on their own or on a carrier, as this could be seen as allowing patents for computer programs as such. This makes what is patentable much more restrictive than the amended Indian Patent Act. Even with this restriction, the critics of the EU directive have pointed out that a patent on software is in effect a patent on an idea, while patents have been given only for concrete physical inventions. As any software package is composed of a number of software components, this will encourage predatory practices by large global corporations who have already built large patent portfolios. These companies can prevent smaller companies from developing their packages threatening them with claims of infringement of some patent or the other. This is the reason that most small business organisations in EU have opposed this move. In their view software patents would favour large companies over small, innovative ones. We strongly urge the Government to reconsider this step, which might mean that India becomes only a nation of body shoppers and is not able to develop its software products in the future. It will also impose unacceptable costs on the users, the industry, the Government and of course the general public. Prabir Purkayastha