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EPISODE – LXXXIX
TOPIC: A Prudent Decision
BLOG: The Hindu
TOPIC: Science and Technology
GENRE: Opinion

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Can computer programmes be granted patents? On February 19, India’s patent office wisely answered this question in the negative, putting an end to months of ambiguity (uncertainty or puzzle) over the patentability of computer programmes. In this process, the patent office, called the Office of the Controller General of Patents, Designs & Trade Marks, effectively reversed (move backwards) an August 2015 guideline that had triggered (activate) the ambiguity in the first place. Till that guideline came, India’s stance (the way in which someone stands) on this issue had been clear through a 2002 amendment to the Patents Act: that software per se was not to qualify for patent protection. However, lawmakers also recognised that the intention must not be to reject inventions involving software that “may include certain other things, ancillary (providing necessary support to the primary activities or operation of an organization, system, etc.) thereto or developed thereon”.

Experts have interpreted (explain the meaning of (information or actions)) this exception to refer to innovations in both software and hardware. The 2015 guideline threatened (terrorize) to unsettle that nuance (variation). According to that, technical advancements could be sufficient grounds on which to confer patents. Its nullification (act of cancelling something) is welcome as such rules, though seemingly on the side of innovation, do not enable a level playing ground. For starters, the share of patents held by Indians has traditionally been low, and it continues to be so. Also, the field of software is dominated by corporate giants with deep pockets and significant expertise (expert skill or knowledge in a particular field), and they can easily ‘out-patent’ the others out of business. The smaller companies and start-ups — and there are far too many aspirants with that profile — then not only have to spend huge sums of money to protect their work, but they also have to be financially and operationally ready to defend themselves.

The patent office hasn’t left it at just that. It has also issued a three-stage test to examine applications of computer-related inventions. Step one is to interpret the claim. Once that is done, step two is to deny the claim in case the “contribution lies only in mathematical model, business method or algorithm”. Step three is to assess if the invention is claimed in the field of software in conjunction with a novel hardware. The important point to note is the recognition that software in itself is never patentable. This is a prudent (wise or well judged) stance, because there are inherent (existing in something as a permanent) problems in figuring out if software is patentable or not. And this is true the world over.

Germany and New Zealand exclude software from patentability. In many other parts of the world, the positions are nuanced, like the one taken by the European Patent Convention, which does not entertain applications when they pertain (be appropriate, related, or applicable to) to computer programmes as such, but it does have an open mind when they lead to “non-obvious” contributions. In the U.S., a more open policy has led to a flood of patents, and consequently the negative connotation that the term ‘patent thicket’ carries now. There is a more important reason for holding back software from a patents regime. And this goes back to what MIT researchers James Bessen and Eric Maskin showed many years ago: imitation promotes innovation. Patents are a hindrance here.

Article by The Hindu

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