MEP to Indian MPs: TRIPs demands copyright, not patents for software

21 March 2005 -- David Hammerstein, Member of the European Parliament, sent a letter to the Indian Members of Parliament on the subject of the patentability of software, which is subject of a bill tabled in the Indian Parliament on 18 March by Minister for Commerce & Industry Shri Kamal Nath.

Hammerstein's Letter

Mr. T.K. VISWANATHAN Secretary to Government of India,

Mrs. Sonia Gandhi, Leader of the Indian National Congress, 10, Janpath,

Dr. Manmohan Singh Prime Minister of India

Shri Kamal Nath Minister for Commerce & Industry

L K Advani Leader of Opposition

David Hammerstein Member of the European Parliament Grupo Verde/ALE

Subject: Software patents in the Parliaments of Europe and India

Dear fellow MP,

I am writing to you on the subject of software patents as Member of European Parliament. The European Parliament has opposed to make software patentable in September 2003, and in February 2005 the European Parliament by unanimous vote rejected a proposal by the Council of the European Union to request that. The debate is still open here, but speaking as a Parlamentarian I urge you to avoid any hasty and unwise steps in India.

During our debate, the US trade representative (for example in a letter of 16 September 2003) has argued that Europe was bound to have software patents due to the TRIPS treaty. We have now reached the understanding that in the making of TRIPS there is no indication that computer programs were to seen as a field of technology in the sense of TRIPS. Hence we clarified in Article 2 of our directive: "(2) The use of natural forces to control physical effects beyond the digital representation of information belongs to a field of technology. The processing, handling, and presentation of information do not belong to a field of technology, even where technical devices are employed for such purposes".

This is in accordance with art 52 (2)(c) of the European Patent Convention that states clearly that "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" shall not be regarded as inventions.

Moreover, article 10 of the !TRIPs treaty also clearly demands protection by copyright for computer programs; TRIPS does not mention patent protection for computer programs at any place.

Given that the majority of software patent applications at the European Patent Office is from US and Japanese countries, having software patentable is clearly not in Europe's interest, and it is also likely also not to be in India's interest.

I would recommend either

to amend the Indian law in the sense as outlined at http://wiki.ffii.org/InAmend0503En
or just to keep the acceptable present wording of the Patent Act's 2002 version "3 (k) a mathematical or business method or computer programme per se or algorithms" and to reject the ambiguous wording that has it had been issued by the Minister of Industry Kamal Nath in December 2004 ordinance "3 (k) a computer programme per se other than its technical application to industry or a combination with hardware; 3(ka) a mathematical method or business method or algorithms;"
or to improve the present wording of the Patent Act's 2002 version by simply deleting "per se" in "3(k) a mathematical or business method or computer programme per se or algorithms"

With kind regards,

David Hammerstein