Software Patents rigamarole- non-starter for start ups!

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 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

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.

Open Innovation, entrepreneurship, and our digital future

Open Innovation has lead to the creation of priceless resources like Wikipedia, and Free and Open Source Software (FOSS) that form the foundations of our digital society. The freedoms enjoyed by hundreds of thousands of young people around the world, hacking on laptops, hacking on servers, hacking on general purpose hardware is the primary source of the innovation which drove much of the world’s great economic expansion in the past ten years. This freedom to hack has enabled innovation and entrepreneurship, and made it possible for innovation to occur where it can occur without friction, which is at the bottom of the pyramid of capital.

As India witnesses one of the greatest entrepreneurial spurts in its history, much of it based on technologies built through collaboration and openness, it is important to understand the forces that drive the Open Innovation ecosystem. In this session, some of the brightest minds in the Open Innovation ecosystem, and the world of FOSS, will discuss:

  • 1) Why Open Innovation is important for India’s digital future
  • 2) Why Open Innovation and entrepreneurship are deeply interconnected
  • 3) How India can become one the leaders of this entrepreneurship
  • 4) What India needs to do to protect and nurture Open Innovation

Click here to register for the event.

The speakers are:

Prof. Eben Moglen: Prof. Eben Moglen is Professor of Law and Legal History at Columbia University Law School. Professor Moglen is the founder of the Software Freedom Law Center, which has represented many of the world’s leading free software developers. Professor Moglen earned his PhD in History and law degree at Yale University. He has taught at Columbia Law School since 1987 and has held visiting appointments at Harvard University, Tel Aviv University and the University of Virginia. In 2003 he was given the Electronic Frontier Foundation’s Pioneer Award for efforts on behalf of freedom in the electronic society.

Keith Bergelt: Keith Bergelt is the chief executive officer of Open Invention Network (OIN), a collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux. In this capacity he is directly responsible for enabling, influencing and defending the integrity of the Linux ecosystem. Central to the achievement of his goals is the acquisition and transfer of patent rights designed to permit members of the Linux ecosystem to operate free of the threat of assertion and litigation from those whose business models are antithetical to innovation and global economic growth in information technology and computing.

Mishi Choudhary: Mishi Choudhary is a technology lawyer and an online civil liberties activist. She is the Legal Director of Software Freedom Law Center, New York and the founding Executive Director of, a pro-bono legal services organization based in New Delhi, India. At SFLC, New York she represents the world’s leading free and open-source software projects and advises technology companies. SFLC counsels clients on the big picture, beyond today’s specific problems, helping projects reach their long-term goals safely and efficiently. is widely regarded as the leading organization for extensive work on free speech and expression, privacy, software patents, corporate surveillance, network neutrality, internet governance, free and open-source software, and access to knowledge. For her work on these issues, she has been chosen to be amongst Asia Society’s 21 Young Leaders Initiative that identifies dynamic young leaders under the age of forty, bringing them together and supporting them as they build the critical mass to impact global affairs for decades to come.

Venkatesh Hariharan: Venkatesh Hariharan is Director of Alchemy Business Solutions LLP, and Outreach Lead (India) for the Open Invention Network (OIN). Alchemy is an organization that focuses on leveraging technology for development, while OIN is a defensive patent pool and community of patent non-aggression which enables freedom of action in Linux. He is also a member of the Governing Board of the Software Freedom Law Center.

Hariharan has served as Head of Public Policy and Government Affairs with Google, and as Corporate Affairs Director for Red Hat in the Asia-Pacific region. He has worked on key policy issues like Internet regulations, open standards, software patents, open source in government, and Indian language computing.

Software Patents: Evil, Necessary or an Evil Necessity? iSPIRT OEQ Hangout

iSPIRT organized a OEQ(Open Ecosystem Hangout) on 20th April, 2015, to understand the role of software patents within the software ecosystem.Software patents are a much debated subject in the technology world today. In some jurisdictions like India, software is not part of patentable subject matter, while in other jurisdictions like the US, software patents are rampant. Do Indian startups need software patents? In a globalizing world, what strategies can they adapt to navigate through the software patents conundrum?

I moderated the session and asked the software entrepreneurs in the discussion to share their cost-benefit analysis of software patents.

Rushabh Mehta of ERPnext responded by saying that as a young startup, they find the cost of software patenting (estimated at around $ 15,000-$20,000 or between Rs 9.3 lakh to Rs 12.4 lakh) to be too high.

Srivibhavan Balaram of Vocera Communications, an entrepreneur, who has worked with open source and closed source software companies, said that patenting makes sense only if there is something unique that is worth patenting. However, he also added that the market for enterprise software was tilting more to open source now because companies were more inclined to go with time tested open source software, which find much faster acceptance. He added that companies are wary of proprietary software from startups.

Subramaniam Vutha, a veteran IP Lawyer and founder of the Technology Law Forum, said that India should actively encourage open source software, while accumulating as many patents as possible in jurisdictions that allowed it. He called this strategy, “Running with the hares and hunting with the hounds.”

Samuel Mani, Partner at Mani Chengappa & Mathur, said that defensibility is the only reason to file software patents. In a study that his organization did, he found that most areas that could be patented were already staked out. He pointed out that the cost of patenting is between $15,000-$20,000 which is the cost of hiring one employee for two years. He suggested that companies that aim to create a defense against software patents could join a defensive patent pool like the Open Invention Network (OIN).

Mishi Choudhary of the Software Freedom Law Center agreed with Mani on defensive patent pools like OIN. She added that most Free and Open Source Software are copyright licenses, but some also contain patent grants. She suggested that participants review the Debian Patent Policy.

This was the first such Hangout on software patents from iSPIRT, and there are plans to organize more such Hangouts to generate greater understanding of this topic.