FAQ’s on Copyright

copyright

What is copyright?
Ans: Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create

An overview : Intellectual Property Rights

Intellectual Property RightsAashka Shah

 

 

What is Intellectual Property Rights (IPR)

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.[1]

Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights Safeguard creators and other producers of intellectual goods & services by granting them certain time-limited rights to control their use. Protected IP rights like other property can be a matter of trade, which can be owned, sold or bought. These are intangible and non exhausted consumption.[2]

 

Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.[3]

 

Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.[4]

 

Intellectual property Right (IPR) is a term used for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the Intellectual Property. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that Intellectual Property rights may be protected at law in the same way as any other form of property. Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest.[5]

 

What is a property?[6]

 

Property designates those things that are commonly recognized as being the possessions of an individual or a group. A right of ownership is associated with property that establishes the good as being “one’s own thing” in relation to other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she deems fit, whether to use or not use, exclude others from using, or to transfer ownership.

 

Properties are of two types – tangible property and intangible property i.e. one that is physically present and the other which is not in any physical form. Building, land, house, cash, jewellery are few examples of tangible properties which can be seen and felt physically. On the other hand there is a kind of valuable property that cannot be felt physically as it does not have a physical form. Intellectual property is one of the forms of intangible property which commands a material value which can also be higher than the value of a tangible asset or property.

 

Types of IPR

  • Trademark
  • Copyright
  • Patent
  • Design
  • Geographical Indication
  • Trade Secret (Confidential Know How)
  • Traditional Knowledge

 

Trade Mark[7]

A trade mark is a sign that you can use to distinguish your business’ goods or services from those of other traders.A trade mark can be represented graphically in the form of your company’s logo or a signature.

Through a registered trade mark, you can protect your brand (or “mark”) by restricting other people from using its name or logo.

Once acquired, a trade mark can last indefinitely as long as you renew it every 10 years. Because a registered trade mark is a form of IP, you can license or assign it to others.

Copyright[8]

Applies to literary and dramatic works, artistic and musical works, audio and video recordings, broadcasts and cable transmissions.

Copyright is also the usual way of protecting software, although some software may be patented if it is a functional part of an invention. Copyright arises automatically; it does not need to be applied for (but can be for register purposes); and lasts 70 years after the death of the author.

 

Patent[9]

A Patent is a right granted to the owner of the patent to stop others from making, using or selling the invention that is the subject of the patent.

The monopoly granted to the patent owner can last for up to 20 years enabling the patent owner to recover costs associated with development and be rewarded financially for their efforts.  However, once the patent has lapsed, the public may use the invention described in the patent.

 

Design

A design refers to the features of a shape, configuration, pattern or ornament applied to an article by any industrial process.[10]

A design registration protects the overall appearance of a product. Almost any type of manufactured product can be protected in this way and there are very few exceptions.

The scope of registered design protection is confined to the appearance of the product; it does not protect the design’s functionality when embodied in a product of different appearance. This means that if a design incorporates a new functional component that is not limited to its appearance, patent protection may be more appropriate.[11]

 

Geographical Indication

Geographical Indications of Goods are defined as that aspect of industrial property which refer to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.[12]

For example, agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil.

 

Trade Secret (Confidential Know How)

Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.[13]

Trade Secret may include customer profile, marketing strategies, financial information, consumers , suppliers, etc.

 

 

Traditional Knowledge

Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.[14]

 

Conclusion

Thus it is very important to give reorganization to the intellectual of a person and not only it is important to recognize them but also to give it a protection for the benefit of both i.e. the inventor or the creator and the society at large.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm

[2] http://www.dcmsme.gov.in/emerge/website_material_on_IPR.pdf

[3] http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf

[4] http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf

[5] http://www.caaa.in/Image/34_Hb_on_IPR.pdf

[6] http://www.caaa.in/Image/34_Hb_on_IPR.pdf

[7] http://www.ipos.gov.sg//AboutIP/TypesofIPWhatisIntellectualProperty/Whatisatrademark.aspx

[8] http://pasteur.crg.es/portal/page/portal/Internet/HIDE-Technolgy_Transfer/Tech%20Transfer%20Info/ip

[9] http://www.piperpat.com/page/new-innovation-patents#.U1S8pF2Hqho

[10] A design refers to the features of a shape, configuration, pattern or ornament applied to an article by any industrial process.

[11] http://www.davies.com.au/content/43/designs/design-protection

[12] http://ipindia.nic.in/girindia/

[13] http://www.wipo.int/sme/en/ip_business/trade_secrets/trade_secrets.htm

[14] http://www.wipo.int/tk/en/tk/

A Comparative Analysis of Patents, Copyright and Trademarks

 

 PATENTS COPYRIGHTS TRADEMARKS
 The Relevant Indian Law. The Patents Act, 1970. [As amended by the Patents (Amendment) Act, 1999,2002 and 2005 The Copyright Act, 1957. The Trade Marks Act, 1999.
  The Relevant Rules. The Patents Rules, 1972. [As amended by the Patents (Amendment) Rules, 1999, 2003, and 2006. The Copyright Rules, 1958. The Trade Marks Rules, 2002.
 

 

 

 

 

Who Can Apply?

[Section 6](a) The true and first inventor of the invention, OR

(b) An assignee of the true and first inventor, OR

(c) The legal representative of any deceased person who immediately before his death was entitled to make such an application.

[Section 45]

  • The Author of the work, OR
  • The Publisher of the work, OR
  • The Owner of the work, OR
  • Any other person interested in the work.

 

[Section 18]

  • Any person claiming to be the proprietor of a trademark used or proposed to be used by him.

 

 PATENTS COPYRIGHTS TRADEMARKS
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Term / Duration.

[Section 53]

  • 20 Years from the date of filing of Application for Patent.

 

[Section 22 – 29](a) In respect of  literary, dramatic, musical or artistic work (other than Photograph) published within the lifetime of the author;

 

  • 60 Years from the beginning of the Calendar year next following the year in which the author dies.

 

(b) In respect of Photographs or Cinematograph Films or Sound Recordings.

 

  • 60 Years from the beginning of the Calendar year next following the year in which they are published.

 

 

(c ) In respect of Government Work, Works of Public Undertakings or Works of International Organisations.

 

  • 60 Years from the beginning of the Calendar year next following the year in which the work is first published.
Section 25]

  • 10 Years

(May be renewed for 10 Years from the date of expiration of original / last renewal of the registration.)

 

 PROCEDURE FOR APPLICATION  PATENTS COPYRIGHTS TRADEMARKS
(a) Persons entitledto apply. 

 

(b) Form of

 

 

 

 

(c) List of Forms.

 

 

 

 

(d) Fees.

 

  • Section 6 of the Act,
  • Section 7 of the Act,
  • Rule 8 of the Rules.

 

  • SECOND SCHEDULE

 

 

 

  • FIRST SCHEDULE

(Rule 7)

  • Section 45

 

 

 

  • Rule 16

 

 

 

 

 

  • FIRST SCHEDULE

 

 

 

  • SECOND SCHEDULE

(Rule 26)

  • Section 18

 

 

 

  • Rule 12

 

 

 

 

 

  • SECOND
    SCHEDULE

 

 

 

  • FIRST
    SCHEDULE

(Rule 11)

Statement 1. There is nothing wrong in buying pirated product so long the product satisfies users requirements and priced less than original

Statement 2: One should not buy pirated product even if it is available at a lower price because it is detrimental to the interests of the rightholders and the society.

 

Table 1: Views on Performance of the Enforcement Authority by Different Target Groups

Target Groups Percentage of Respondents Total No. of Respondents
Satisfactory Not Satisfactory
Film Producers 34.5 65.5 55
Video Films Producers 31.8 68.2 22
Book Publishers 58.2 41.8 79
Music Companies 46.2 53.8 13
Public Performers 51.6 48.4 93
SUB TOTAL 48.1 51.9 262
Video Cassettes Sellers 56.8 43.2 81
Book sellers 2.9 97.1 137
Music Cassettes Sellers 54.8 45.2 135
Software Sellers 40.2 59.8 92
SUB-TOTAL 36.2 63.8 445
Total No. of Respondents 287(40.6) 420 (59.4) 707 (100.0)

 Note: Figures in brackets show percentage to the Total.

Source: NPC Survey

 

Table 2: Public Awareness of Copyright as perceived by various Target Groups

Target Groups Rating on Awareness (%)
Excellent Good Satisfactory Poor Total No. of Responses
Film Producers Nil 5.6 24.1 70.4 54 (100.0)
Video Film Producers 9.1 9.1 81.8 22 (100.0)
Music Companies 28.6 14.3 57.1 14 (100.0)
Book Publishers 7.9 20.2 71.9 89 (100.0)
Public Performers 1.0 9.2 24.4 65.3 98 (100.0)
Video Cassette Sellers 2.4 20.5 26.5 50.6 83 (100.0)
Music Cassettes Sellers 6.6 8.1 38.2 47.1 136 (100.0)
Computer Software Sellers 1.0 11.9 22.9 64.2 109 (100.0)
Total No. of Respondents 15 (2.5) 64 (10.6) 158 (26.1) 368 (60.8) 605 (100.0)

Source: NPC Survey

 

Table 3: Responses of End users regarding buying of Pirated Products.

End Users No. of Respondents
Statement 1 Statement 2 Total Respondents
Readers 40 (33.6) 79 (66.4) 119 (100.0)
Audio Products 32 (25.2) 95 (74.8) 127 (100.0)
Film Viewers 27 (22.3) 94 (77.7) 121 (100.0)
Total 99 (27.0) 268 (73.0) 367 (100.0)

Statement 1. There is nothing wrong in buying pirated product so long the product satisfies users requirements and priced less than original

Statement 2: One should not buy pirated product even if it is available at a lower price because it is detrimental to the interests of the rightholders and the society.

 Source: NPC Survey

 

Table 4: Responses of end users regarding knowledge about the punishment on Buying Pirated products.

End Users Yes No Total No. of Respondents
Readers 101 (82.8) 21 (17.2) 122 (100.0)
Users of Audio Products 97 (75.8) 31 (24.2) 128 (100.0)
Film Viewers 94 (76.4) 29 (23.6) 123 (100.0)
Total 292 (78.2) 81 (21.7) 373 (100.0)

 Source: NPC Survey

 

Bibliography :-

Books referred:

Copinger and Skone James on Copyright, Sweet & Maxwell, London, 1999
Cornish, W.R., Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, Sweet & Maxwell,London, 1999
Kailasam K C, Trademarks and Geographical Indications, Wadhawa and Company,Nagpur, 2003
Lai’s The Copyright Act, Law Publishers (India) Pvt. Ltd,Allahabad, 2002
Narayanan P., Copyright and Industrial Designs, Eastern Law House, Kolkata, 2002

References:

Copyright And Patenting of Software: Position in India

PatentSTATUS OF SOFTWARE PROTECTION IN INDIA

GENERAL

In India, software has traditionally been protected under Copyright Act, 1957 as software programme. Computer software, also known as computer programme, has a market value and is subject to fierce competition due to a shorter life circle and the potential danger of blatantly being copied or developed by reserve engineering. Granting protection to software through appropriate intellectual property mechanism, therefore, becomes essential to secure enhanced rights of the creator over the software and encourage creativity, innovation and investment. Such a protection to computer programme can also be seen as a form of legal subsidization to a particular industry and technology.

Attempt to extend protection under patents was hindered in 2005 with an amendment in the Patents Act, 1970 which excluded a computer programme from the list of inventions which could not be patented. The expression used in section 3(k) of the Patents Act is “a mathematical method or a business method or a computer programme per se or algorithms.” The interpretation of “computer programme per se” has been a contentious issue and often understood that software inventions could be patented while mere computer programmes should not be patentable.

SOFTWARE PROTECTION UNDER COPYRIGHT

Section 2 (ffc) of the Copyright Act provides protection to “computer programme” as a set of instructions expressed in words, codes, schemes, or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. This protection extends only to the particular expression of an idea that was adopted and not the idea itself or the procedures, methods of operation or mathematical concepts. Copyright confers an exclusive right to reproduce the material, issue copies, perform, adapt and translate the work for a minimum period of the lifetime of the author plus sixty years (there are certain exceptions in the case of the rights of fair use for academic purposes, news reporting etc). It entitles the owner to prevent copying of the protected work, to prevent the distribution of copies and to prevent preparation of derivative works.

Computer software includes items like the programme manuals and papers, punched cards and magnetic tapes or discs required for the understanding or operation of computers, all of which are capable of copyright protection as they fall under the notion “literary work.” The expression “schemes or in any other form” indicates that the source code, which is a computer programme written in a programming language, and the object code, which is the version of a programme in which the source code language is converted or translated into the machine language of the computer with which it is to be used of a computer programme – are entitled to copyright protection. Both the TRIPS Agreement, 1995 and WIPO Copyright Treaty, 1996 provide that computer programmes, both in source and object code must be protected by copyright. Procedurally, the ease with which copyright can be obtained and the duration of protection it provides makes it a popular mode of protecting software.

EXTENT OF EXISTING PATENT PROTECTION IN INDIA

Patent is granted to any “new” and “useful” art or process or method or manner of manufacture or machines or appliances or other articles or substances produced by manufacture. It grants an absolute monopoly or the right to prevent others from marking, using, offering for sale without the consent of the patent holder for a period of 20 years from the date of the application. Right is granted to the one who applies first, regardless of who invents first. In the case of software, it is sometimes accompanied by hardware also and, in such a case, the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well.

In the Manual of Patent Practice and Procedure released by the Indian Patent Office (“Manual”) , 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.

Per the Manual, a claim directed to a technical process 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. An invention consisting of hardware along with software or computer programme in order to perform the function of the hardware may be considered patentable, for example, embedded systems.

PROS AND CONS OF PATENTING AND COPYRIGHT OF THE SOFTWARE

ADVANTAGES OF COPYRIGHT PROTECTION

Copyright protection continues to have potentially important advantages over patent protection. Copyright protection is in general much easier, much less expensive and much less time-consuming to obtain, and copyright infringement is typically much less complicated and less expensive to prove relative to patent infringement.

Copyright protection can become essential where pirates or mainstream competitors make exact or substantially similar software copies. Copyright infringement liability for exact copying can almost always be established much more simply than patent infringement liability, resulting in much lower litigation costs and an increased likelihood of securing expedited injunctive relief and exclusion orders. And regardless of whether the copyist makes exact or substantially similar copies, the prospect of copyright-infringement liability gives the copyist more to worry about, since copyright-infringement charges and patent-infringement charges call different acts into question, involve different defenses to infringement and provide the software developer with different options for extracting monetary relief.

Most importantly, Copyright protection is created automatically when software is fixed in a tangible medium, so that many of the above advantages are available regardless of whether the copyright owner applies a copyright notice to its software or registers the software with the Copyright Office. Although it is better to give a notice and get it registered as it enhances the infringement remedies, which in turn can help deter infringement and encourage favourable settlement.

LIMITATIONS OF COPYRIGHT

There are certain limitations of copyright protection in India and several other countries working in similar legal sphere. For instance, the law as it stands today cannot prevent the creation of competing programmes that utilizes the same ideas as an existing programme. Further, there is no protection of the “ideas” underlying the computer programme, which often have considerable commercial value. The expression of a method of operation and principles of a computer programme cannot be protected by copyright.

Functional aspects of a computer programme are excluded from copying. It also fails to prevent the reverse engineering from independent inventions and has often been found more susceptible to piracy (cyber-piracy as well) and data theft. In order to prove copyright infringement, it is essential to establish that the defendant has in fact copied the work from the owner of the copyright. Interestingly, there is no infringement and the owner of a programme is entitled to make copies (including back-up copies) or adaptation of a computer programme, so long as the copy is utilized for the purpose for which it was supplied.

BENEFITS OF SOFTWARE PATENTING

Patents can provide valuable protection for software and have several advantages over copyrights. Some of the advantages which patent protection have over copyright are as follows:

Economically beneficial and protects investment

Some software applications can cost thousands of dollars to develop. Once created, other companies or developers can easily copy your software and market it as their own. With a software patent, no one can copy your software without a legal written agreement. If other developers copy your software, all the money you invested into the project becomes a waste. A software patent protects your investment .

And this can increase the valuation of small companies. Patent lawsuits are one of the only tools available to combat large players in the software marketplace (e.g. Microsoft) and allow innovative small companies to build a market of their own or at least receive fair compensation for their investment.

Public disclosure and secrecy issues

A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public.

Furthermore, patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed.

This in turn is helpful for the software developer as the inventor will not be concerned with secrecy problems that copyright holder faces.

Strengthens protection

You can apply for a software patent even during the design phase of your project. Source code is not required to receive the patent. Organizations should be able to protect their intellectual property. Moreover it has been said that Software patents provide more protection than a copyright. A copyright may only protect design or specific code segments. A software patent protects the software application as a whole, including all unique screens, code and developer trade secrets.

Patent Challenges

Granted patents can be revoked if found to be invalid. Development of new ideas is therefore not blocked by bad patents, and therefore the proposed negative effects of patents are moot. On the other hand it is useful for the holder as in a patent infringement claim patent holder has the advantage of not facing the defence of independent creation.

NOTE: Though in India, a clause to include software patents was quashed by the Indian Parliament in April 2005, several other countries all over the world like U.S., Japan, Canada and now South Korea advocate patentability of software as a better option.

European Union member states and UK have found a middle and interesting way, Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered un-patentable as lacking an inventive step whereas a computer program implementing an industrial process is taken as invention.

ARGUMENTS AGAINST THE PATENTIBILITY OF SOFTWARE

Lack of patent application disclosure and hindrance in development

Software patents hinder the development of software and free and open source software. The effect of patenting has led to keeping the software source code, which is the essence of practical technical knowledge in software, secret. The process of integrating functions of one piece of software into another, and vice-versa, which is the key to innovation in software is now facing impediment due to patenting of source code. As the patent applications are confidential, so a computer programmer will never be aware if he is violating any patent.

This makes the survival of small players difficult. When protection for the code or expression is available under the Act, there seems no reason to protect the ideas or functionality of that software as well. Understandably, patenting of software helps large software corporations that already have a large number of software patents and those corporations that do not create software, but only trade in patents/sue on the basis of patents.

 

Slow Patent examination

Even in countries like U.S. a typical software patent application takes one and half to four years to be approved . For 2005, the projected average pendency for patent applications in the “Computer Architecture, Software & Information Security” department of the U.S. Patent and Trademark Office was 3 and a half years. In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005, with the computer related fields probably being greater than the average.

The question thus lies that would be the situation in countries with lesser resources and many more number of applicants both because of population pressure and intelligent minds.

Trivial patents

Computer software is a complex component which generally comprises of several million lines of code having the potential of thousands of inventions, any of which is capable of being patented. It depends upon a vast range of technologies which evolve rapidly and gets replaced in markets even before the previous becomes redundant, so such two or more inventions can simultaneously survive in the market.

This leads to grant of patent to trivial patents and patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies .

Shorter term

The basis of granting patent to software (to foster the growth and evolution of the industry) is defeated as even if software meets the technological criteria for patent protection, such protection would be useless because of the very short market life of software.

A great deal of debate surrounds the validity of the grant of twenty years protection versus lifetime plus sixty years for copyright. A valid view is that twenty years of monopoly rights is preposterous in an industry where the rate of turnover of technology is less than a year or so.

NOTE: A new idea is emerging. Through the study of patent protection all over the world and the views of the future IPR a concept of combining both the patent and copyright regime is coming up.

And one of the arguments is that ff software is both functional and expressive, then software is susceptible to protection by patent and copyright law both or some hybrid of the two .

 

CONCLUSION

Software industry has a very characteristic nature which makes it extremely vulnerable to being easily monopolized. Some of these are interoperability and compatibility problems, the low cost of massive reproduction of software, the difficulty of inspecting software distributed without the source code, and the rapid evolution of the market. Copyright supplements these characteristics whereas patents are restrictive.

However, in the present competitive economy, patent protection is viewed as a trade-off between the need to encourage innovation and the necessary evil of allowing a temporary monopoly to the innovator. It additionally helps in fighting the menace and commercial loss caused by piracy. Unlike copyright that protects only the final work, software patent protect the imitation of features, elementary ideas. Software patents, by allowing its holders to claim even elementary ideas, constitutes an extremely powerful monopoly-creating instrument as the holder of patent can prevent the selling of all software implementing the patented idea – whatever the application domains can be!

These all arguments and the study of trend all over the world give away the fact that software patenting is now coming in larger use and countries with higher technological advances are preferring the option of patenting, and thus the first postulate that the countries all over the globe are preferring copyright only stands negated.

However it would be wrong to say that copyright for software should be done away with entirely. The scenario above sketches a rosy picture but only for the giants in the field and well to do off countries. It is still a hindrance for development which is the spirit of the Intellectual Property and the object of protecting them and still for a wholesome effect the problems of open source and fair usage needs to be worked out.

Not only that; for the countries like India and other developing nations and the individuals and industries within patenting is a lengthy and costly affair. Moreover allowing patenting of software would give a fatal blow to advances of small and medium enterprises that do not have a large defensive patent portfolio. Thus there is still a long way for the patents to go and be called the best and the only existing mode of protection for software.

Thus the second postulate is correct as it reflects that out of the two options the one which suits the utility of a nation and the IPR holders must be ultimately used.

 

 

Patent of Inventions, Innovation in Softwares: Patinformatics

A comparative analysis of Global players

Ankit Kumar Singh

A. Background:

The practice of granting monopolies by patent has a long history of over 600 years. The term patent can be traced to the term Letters Patent, a grant in the form of a document rolled up with the King’s or Queen’s seal appended at the bottom, conferring certain rights and privileges on an individual. The grant was not sealed or closed but it was open to public. Though letters patent were granted for various purposes, they were most often granted to inventors, and hence the word ‘patent’ was eventually used to describe the inventor’s monopoly. It only excludes others from practising his invention without his permission. The patent system achieves this goal by granting limited exclusive rights to inventors in return for public disclosure of inventions that would encourage scientific and technological advancement. An invention is the creation of a new technical idea and of the physical means to accomplish or embody it. Thus, there must be a concept and a way of putting the concept into some practical form. An unimplemented idea is not patentable. Software is a set of interacting programmes. Each programme is a sequence of instructions written in a well-defined language, encoding operations, processes or algorithms applied to data in the broadest sense. The programme is initially written in a programming language understandable to professionals. At this stage, it is in the form of ʺsource codeʺ, which permits the development and production of a software product. Once written, this sequence of instructions can be compiled, which means translated and transformed into a binary sequence (of 1s and 0s) signalling the presence or absence of an electric impulse, comprehensible for a machine, but no longer to a human mind. It is then in the form of an ʺobject codeʺ or binary code. In simple words, a computer program, or software, is a “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” A software-related patent is a “patent that claims as all or substantially all of its invention some feature, function or process embodied in a computer program that is executed on a computer.” A major subject of debate is whether software alone, not in combination with other physical elements or steps, should be, or is, patentable.

B. Arguments in Favour of Patenting:

Although software exists as written text, both as source and object codes, unlike other copyrightable subject matters, its primary purpose is not that they be read by human beings. Rather, software, at least in object code form, is written for the purpose of performing functional tasks. Computer software, in conjunction with the computer, carries out the particular task or set of tasks itself. In short, software is a functional work of technology. Historically, patent protection has always been available for functional subject matters. Patent protection of computer software is that a patent can protect a concept underlying the computer program, and thus would promote the development of the software industry and computer-related industry. Software provides a set of instructions that allow a machine to indicate, perform or achieve a particular function, task or result. In that sense, both hardware and software exhibit technical behaviour.

Since software invention requires considerable investment of time and money, it should be protected. Given the limited ability of copyright to protect the valuable functional aspects of software such as behaviour and structure, sequence, or organization, second comers could simply copy these aspects either directly from the source code or by decompiling the object code. These kinds of practices diminish the real value software and deprive the original developers of the ability to recoup their development costs and from earning money from their inventions. Therefore, the prospect of obtaining an exclusive right to practice and/or license an invention under patent protection gives inventors important financial incentives to invest time and resources in developing new inventions.

The reward in the shape of a patent serves as an incentive to innovators, as it can be argued that developers need means to recuperate their investment. In other areas of innovation, patents have encouraged substantial investment in research and development and have generally promoted innovation. Software development is a vibrant area of innovation, despite the uncertain nature of its legal protection. The success of open source software also serves to diminish the claim, as there is a field of endeavour where thousands of developers innovate without the incentive of patent protection. If a computer program contains elements that meet patentability requirements, it should be awarded software protection. Since software development is a technical field like any other its results should be patentable. Effective protection of the software industry is an economic necessity. Over the few past decades, the software industry has achieved a substantial growth rate which continues to grow unabated. Countries that want to increase or at least to sustain investments in this sector should provide effective protection mechanisms for these technologies.

C. Arguments against Patenting:

Computer programs are already protected by copyright, and thus it is not necessary to provide any other titles of protection. Smaller software developers would not be able to enjoy expensive patent protection, and would be put in a position to pay royalties to patents owned by big corporations. Computer software is actually an algorithm or a mathematical formula. An algorithm is a series of steps to solve a problem and computer program is an implementation of that algorithm, which is like an implementation of mathematical equation. Granting patents for mathematical algorithms would preclude others from performing the same process. So like mathematical algorithms, computer programs should not be patented.

Exclusive rights granted by patents diminish competition by creating monopolies in the market. On the other hand, exclusive rights conferred by a patent owned by small and medium enterprises would strengthen their market position and negotiation power with the possibility to license or assign patents. Patent protection of computer programs would inhibit competition in this field due to the characteristics of software innovation. It is said that software innovation typically involves cumulative, sequential innovation and re-use of others’ work. To a certain extent, this is an inevitable and permitted consequence of the patent system. However, the fact that the software industry has a natural tendency towards monopolies as a consequence of the need for standardization, allows software patents to have a further effect on monopolization in the sector.

Software patents encourage the creation of the so-called ‘patent thickets’: a dense undergrowth of interrelated patents that researchers have to navigate in order to develop new technologies. There are two different types of thickets. The first one is a single technological innovation that may be protected by several patent holders. This situation would require anyone interested in developing software in that area to obtain separate licences from numerous owners. The second type of thicket occurs when a product is covered by a large number of patents, not just one. Patent thickets increase the cost of innovation, they encourage inefficiency through the creation of complex cross-licensing relations between companies, and they may even stop newcomers entering the market if they fail to penetrate the thicket. However, at least one commentator takes issue with critics of patent thickets: even where thickets exist, they have no effect on innovation through research and development spending.

D. Protection of Softwares:

  a) International Perspective:

The most common systems for protecting computer software are: Copyright, Patents, and Trademarks. Copyright protects the expression of an idea in a tangible (material) form. The recent Copyright Treaty by the World Intellectual Property Organization confirms that computer software is to be protected by copyright as a literary work throughout the world. Literary works, such as books and poems, have traditionally been expressed in a written form which is readable to humans. With regards to software, both the source code (human readable form) and object code (machine readable form) qualify for copyright protection. Patents protect the underlying ideas of a product which has commercial value in industry. Computer software incorporates ideas in the form of algorithms and data structures. These ideas can be protected by patents if proven to be innovative enough and of commercial value. Trademarks protect the name that uniquely distinguishes a company or product from the rest. Trademarks are available in regards to computer software in software names and software company names.

In particular, prior to the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the status of computer program protection was undefined under the Paris Convention, which regulates global patent rights, and was controversial under the Berne Convention, which regulates the worldwide copyright regime. The TRIPS Agreement places computer programs under the copyright section by stating that “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention.” Furthermore, TRIPS mandates that all member states create an adequate judicial and administrative enforcement mechanism and provide a dispute resolution mechanism not only for the protection of computer programs but all intellectual property rights.

Despite the TRIPS Agreement, the question of whether or not computer programs can be patented has not been solved. Article 27 of the agreement states that “… patents shall be available for any inventions…in all fields of technology, provided they are … capable of industrial application.” While the second and third paragraphs of the same article allow member states to exclude from patentability some categories such as medical treatment, or inventions dangerous to health or environment, it makes no mention of computer programs. By not commenting on the viability of software patents, TRIPS leaves this decision to the individual signatories. However, even the developed countries differ as to whether computer programs should be patentable, and if so, which limitations should apply.

b) United States:

The U.S. Code defines inventions that are the proper subject matter of U.S. patents as follows: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” Not all “inventions” are patentable in the U.S. because neither a mathematical formula nor an algorithm for making mathematical computations or conversions can be patented. Nevertheless, the U.S. Supreme Court also excluded “laws of nature, natural phenomena, and abstract ideas” from patent protection. Before 1981, the United States Patent and Trademark Office (USPTO) treated computer programs and inventions relating to computer programs as mathematical algorithms or abstract ideas and did not grant patents. Attitudes towards software patents have changed significantly following Diamond v. Diehr, in which the Supreme Court stated that a patent claim could not be denied solely because the invention uses “…a mathematical formula, computer program, or digital computer.” An idea in and of itself is also not patentable. The implication is that any mathematical procedure is akin or identical to a law of nature, which leaves doubt as to whether any computer-implemented inventions are patentable.

Following the decision in In re Freeman, the U.S. Patent and Trademark Office (“USPTO”) applies a two-step test—which was further refined in In re Walter and in In re Abele —to determine whether a particular invention is patentable. The first step is a determination of whether the patent claim describing the invention recites elements or steps that are themselves mathematical algorithms. If a mathematical algorithm is not present, patent protection may be the proper vehicle of protection if the other statutory requirements are met. If a mathematical algorithm is present, a second step attempts to determine whether the claim reciting the mathematical algorithm relates or applies, in a non-trivial fashion, the algorithm to physical elements or process steps, so that the claim as a whole must be analyzed.

In 1981, the U.S. Supreme Court clarified that computer technology should not be treated differently from other technologies under the patent law and that inventions involving a computer program can be the proper subject matter for protection by U.S. patents. Furthermore, the Federal Circuit in In re Alappat held that software has the power to convert a general purpose computer into a special purpose machine, which constitutes patentable subject matter. Today, the U.S. grants patents for a wide range of computer software-related inventions provided that they produce “concrete, useful and tangible” results.

c) Europe:

Traditionally, software has been protected by copyright and excluded from patent protection in Europe. Article 52(2) of the European Patent Convention excludes “schemes, rules and methods for performing mental acts, playing games or doing business, and programming computers” from patentability. These exclusions are made for abstract and intellectual mechanisms, as opposed to useful tangible products or processes. Despite this language, however, patents covering computer software have been granted pursuant to decisions of the European Patent Office Board of Appeal. The panels in those cases interpreted Article 52(2) in light of other provisions of the Convention, including Article 52(3), and concluded that while computer software and business methods cannot be patented as such, they can be patented on the basis of the technical effects produced by the software or method. Over the last fifteen years the Technical Board of Appeal of the European Patent Office (“EPO”) has tried to get over this obstacle, almost even to the point of undermining the clear intent of the entire European patent system, but it is still shackled by its current provisions.

On Aug. 31, 2001, the European Patent Office issued new guidelines with respect to the patenting of computer programs and business methods. The purpose of these amendments was to confirm the guidelines to the aforementioned European Patent Office Board of Appeal decisions concerning the patentability of business methods and computer-related inventions and with current European Patent Office practice on examining such subject matter. Under the 2001 amendments, the European Patent Office, as it had in the past, relied on language in Article 52(3) of the Convention and language in Rules 27 and 29 of the Convention’s Implementing Regulations to issue computer software patents. Under the revised, current guidelines, the European Patent Office may, assuming all other requirements are met, grant a computer software patent provided it is of a “‘technical character’ to the extent that it must relate to a technical field, concern a technical problem, and have technical features in terms of which the matter for which protection is sought can be defined in the claim.” Accordingly, although computer programs per se are not patentable, under the guidelines, “if a computer program is capable of bringing about, when running on a computer, a further technical effect going beyond … normal physical effects, it is not excluded from patentability, irrespective of whether it is claimed by itself or as a record on a carrier.” It is clear that the existing procedure is well established in favour of some limited patentability of software, even after the defeat of the Directive. European Commissioner Benita Ferrero-Waldner has pointed out that, despite the vote, ‘patents for computerimplemented inventions will continue to be issued by national patent offices and the European Patent Office under existing law’.

d) Japan:

Under Article 2(1) of the Japanese Patent Law, computer software, like all other inventions, is patentable if it is a highly advanced creation of technical ideas by which a law of nature is utilized. In February 1997 the Japanese Patent Office issued its Implementing Guidelines for Computer Software-Related Inventions, published, in part, to “adequately protect software related inventions by clarifying that ‘computer-readable media recording computer programs’ ” may constitute statutory subject matter. Just three years later, in 2000, the Japanese Patent Office issued revised Examination Guidelines for Patent and Utility Model in Japan, which included Computer Software-Related Inventions. Under these lengthy guidelines, the Patent Office sought to address the issues raised concerning the patentability of software-related inventions that are not necessarily recorded on computer-readable media (i.e., Internet-related inventions), as well as the patentability of business methods. Its purpose was to, among other things, achieve consistent decisions among patent office examiners and efficient implementation of the patent and utility model laws.

e) India:

Under the Indian law, computer programmes are protected under the Copyright Act, 1957; they are not entitled to protection through patents. The law relating to patents in India is governed by Indian Patents Act, 1970 as amended by Patents (Amendment) Act, 1999 and Patents (Amendment) Act, 2002, which came into force with effect from May 2, 2003. Section 3(k) of Patent Act, 1970“A mathematical or business method or a computer programme per se or algorithms are not patentable.” According to the Draft manual of practice and procedure :

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 merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it may be 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.

E. Conclusion:

Economists view patent protection as a trade-off between the need to encourage innovation and the necessary evil of allowing a temporary monopoly to the innovator. Although it is controversial, no one can deny the importance of software. There are those who argue that software is so fundamental that our society should not allow anyone to own it to the exclusion of others. Some are content to treat software as copyrightable literature, affording protection only to its expressive, but not its functional aspects. Some argue strenuously that the patent system, which has existed since the late eighteenth century, is outdated and cannot handle this new technology and that some different, sui generis, form of protection should be created for software technology. Others argue that the current patent system is working fine and that it will adapt to this new technology, just as it has done many times before. Failure of TRIPS Agreement to determine whether computer programs can be patentable or not and if so which limitations should apply, creates different application among the member states. The U.S. provides for the patent of computer software and even European Union provides for the patent in the Computer programmes if it has “Technical Effect”. On the lines of US, Japan also provides for the patent to the computer software. India too provides for the Patent of the Computer Program in the Hardware form, in spite of its express negation in Patent Act, 1970.