Subject: Re: India's Software Patents
From: Arnoud Engelfriet <galactus@stack.nl>
Date: Tue, 28 Dec 2004 21:45:28 +0100

Bernard Lang wrote:
> * Arnoud Engelfriet <galactus@stack.nl>, le 28-12-04, wrote:
> > But here they explicitly state that a "technical application"
> > of a computer program to industry, or a combination of a computer
> > program with hardware is not covered by the exclusion. 
> 
> I would not interpret it thus.  But I do not have the full text of the
> original act that is modified.

The full act is online at
http://www.patentoffice.nic.in/ipr/patent/patAct1970-3-99.html
although you apparently manually have to apply the 1999 and 2002
patches from
http://www.patentoffice.nic.in/ipr/patent/patact_99.PDF
http://www.patentoffice.nic.in/ipr/patent/patentg.pdf

Basically, what they did is put in a clause that excludes 
"software per se" from patentability. Before, there was no
comparable clause and software patent applications were
rejected as mental activities, mere algorithms and so on.

You can't say definitely from the current law whether an
embedded software invention would be excluded or not. But
with the proposed new wording, there is now a new line drawn
between excluded and permitted subject matter.

> What could be a technical application to industry that is not in
> combination with hardware ?

I think it's more subtle. Under the new wording you can obtain
a patent on a computer program product _if_ that product has
a technical application. Following European caselaw, MP3 compression
has a technical application and so you could use your Indian
MP3 patent against something like mpg321.

> Why do they say it applies only to embedded software ?

No idea. Probably because the proposed new clause (k) talks
about "a computer program... combination with hardware". At
first glance that means embedded software. But it's certainly
a lot broader than that. All I have to do now is claim "a
general purpose computer with a memory having stored
instructions implementing algorithm X".

> seems like the IP lawyers have tried to hide the issues by
> deliberately lying to the public and probably to the politicians
> ... as is customary with them (sorry for the few honest guys in this
> business ... your colleagues are crooks).  We see the same in France.

In my experience it's more a matter of using different dictionaries
than deliberate lies. I think it's quite possible that the Indians
honestly believe they struck a good compromise with this language,
since they have explicit language distinguishing between software
per se and industrial applications, and additionally exclude algorithms
and such from patentability.

Arnoud

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/