Every few years, we witness a fierce attempt to re-ignite the discussion
of patentability of software (something that the Indian Parliament had
rejected in 2005) by the usual beneficiaries of such a system: the mutli
national holders of patent thickets, old system integrators, lawyers,
and patent agents.
These incumbent holders of patent thickets love to confuse rule-making
by crying wolf and repeating arguments already dismissed by the
Parliament in the middle of last decade. No new arguments are presented
but enough confusion is created in a hope that the Patent Act can be
amended through patent office rules instead of amending the Act-an
arduous process.
The legislative intent behind excluding “computer programmes per se”
from patentability is very clear. The parliament understood that
allowing computer software patenting may give rise to monopoly of
multinationals and will make it difficult for Indian companies to
flourish. This was proven right as despite the clarity in law, lawyers
playing word jujitsu were able to get many irregular software patent
application passed by the Indin Patent office. A study by SFLC.in of all
patents granted since 2009 to 2015 shows, 95 % or more patents are
granted to Multi National Corporations and not Indian Companies.
Once again, we are here. When the Patent Office decided to ensure that
no such patents were granted and the patent examiners were trained to
follow the law, they issued Computer Related Inventions guidelines.
These guidelines clearly say merely because you write some software app
which runs on a smart phone does not mean you can prevent all others
from writing any other app. But big companies, multinationals and patent
lawyers have decided to use this yet again to agitate for software patents.
If these guidelines are not followed, what will follow are floodgates of
litigation just like Ericsson–a company no longer a leader in
phones–is suing Micromax, Lava and other manufactures on patent
infringement (around eight suits were filed by Swedish multi-national
Ericsson alone, another three by Vringo Infrastructure) See
http://sflc.in/an-overview-of-
We are often presented with the argument what if an Indian start up
comes with some really inventive program, should they not have a right
to patent it? In reality, it does not happen as often as most work
companies do in the field of software are based on pre-existing works
that has already been patented by mostly U.S. but not always old
incumbents. Due to International treaty obligations, these incumbents
will get priority in patenting in India as well, leaving Indian
companies in the cold. Furthermore, Indian software companies can and do
patent their inventions abroad, thus actively competing in the market
for government monopolies maintained in other countries but in India
they are already at a disadvantage. The Indian startup industry has
flourished without patent protection and can continue to do so in the
future without fear of litigation from patent thickets by not supporting
the grant of software patents.
Software, unlike other sectors in the field of technology, is
essentially based on mathematics and algorithms, where the field of
knowledge has improved over the years by sharing of code and improving
on existing code. Patents were never considered to be the motivating
factor in this industry and patents made their entry much later by means
of judicial interpretations of patentable subject matter in some
jurisdictions. Inventors and companies have prospered in this industry
in the absence of patents. After the mobile patents wars between Apple,
Samsung and multiple other parties, even the U.S. courts are reigning
back their system as is evident from recent court decision in Bilski and
Alice Corporation.
Lawyers always love more law as that means more business for them, a
policy decision based purely on their observations does not constitute
smart policy making. In an industry where technology changes fast and
competitive advantage is derived by innovating at a fast pace, these
government granted monopolies will only act as speed-breakers in the
growth of technology and the industry. The government should wisely pay
no heed to these monopoly holders and keep betting on innovation.