Amendment proposals for Indian Software Patent Law
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Here we collect amendment proposals that could be used to repair the software patent legalisation provisions in the Nath ordinance of December 2004.
Legislative Proposals
Amendments
current version of patent act
a mathematical method or a business method or a computer programme per se or algorithms².
proposed form
a mathematical method or a business method or a computer program or an algorithm, alone or in combination with conventional data-processing equipment.
justification
It is understood without saying that inventions in applied natural science (technical inventinos) are patentable regardless of whether they involve the use of a computer program. The expression "per se" is redundant. Redundant expressions lead to confusion. In this case, the phrase "per se" has been interpreted in ways which make the exclusion pertain only to imaginary abstract objects, thus rendering the provision meaningless. The law should make it clear that the addition of conventional equipment to a software solution does not turn that solution into an invention.
current version of Nath ordinance
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.
proposed form
a computer programme, a web application, an algorithm, a mathematical method or a business method, alone or in combination with conventional data-processing equipment.
justification
Computer programs always imply an application and a combination with computing hardware. The above clause renders the exclusion of computer programs meaningless.
Proposals for Implementation of TRIPs
Proposed New Provisions
Data processing is not a field of technology in the sense of patent law, and innovations in the field of data processing are not inventions in the sense of patent law.
"Industry" in the sense of patent law is automated production of material goods.
Justification
The reason given for the new legislation is that Indian patent law needs to be adapted to the !TRIPs treaty. While we disagree with the proposed interpretation of Art 27 !TRIPs, the need to clarify the meaning of this article for Indian law is undisputed.
The above provisions would help ensure that the Indian courts do not need to interpret the open wordings of Art 27 TRIPs directly but have a national law that applies them and clarifies their meaning.
They were approved by the European Parliament on 24th September 2003.
Systematic cleanup
Indian patent law says what are non patentable inventions.
a) It is better to phrase them non-inventions. b) It is further useful to define them as not belonging to a field of technology (TRIPS 27 clarification)