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A Fond Sendoff

Today we are giving a fond sendoff to Praveen Hari and Venky Hariharan as they transition out of full-time volunteering and onto new challenges! This is a bittersweet moment: as excited as we are about their future plans, we can’t help but feel a sense of loss. We will most certainly miss their selfless energy in our mission to democratize credit in India.

Democratizing credit is vital for India’s future. This particular breed of the societal problem needs a jugalbandi between public platforms like India Stack and market players like banks, NBFCs, and Fintechs – a kind of jugalbandi that is new to our ecosystem. To bring it about, it needed catalysts like Praveen and Venky.

Praveen has been iSPIRT’s ‘dynamo’ behind flow-based lending. He has done innumerable learning sessions, pulled together countless borrower pools, knocked partnerships together, and was instrumental in the design of “Type-4” loans. He has been the go-to person on all things around flow-based lending for lenders, loan service providers (LSPs), technology providers, sophisticated model builders, and VCs. His can-do spirit is legendary: he has been an inspiring blend of thought-leadership and hustle for all of us volunteers in iSPIRT. Because of this, his name will be forever etched into the history of flow-based lending in India.

Venky anchored our Fintech Leapfrog Council (FTLC) efforts from the very beginning and took on the challenging task of helping incumbent banks embrace non-linear change. Since its launch, FTLC has been instrumental in kicking off a number of market experiments and has helped banks think through their strategies around UPI, BBPS, cash flow based lending, and the technology and data governance changes they need to transition to a new era.

Venky’s soft-spoken approach masks a determination to get difficult things done. His charm is legendary, and he used it to help leaders of FTLC banks practice intentional unlearning. This collective effort has moved the industry forward, helped the banks prepare for a more dynamic future, and set the stage for partnership between banks and new age technology and Fintech players.

As quintessential iSPIRT volunteers, both Praveen and Venky have created enormous ecosystem value, and they did it for the mission. Many market players benefited from their work, and (as is iSPIRT custom) not one paisa flowed to either of them. This selfless volunteering is the iSPIRT way. After subsisting on a small Living Wage as full-time volunteers, it is time for Praveen and Venky to move on.

New Beginnings
Praveen is planning to become an entrepreneur again. After his two month cooling off period, he will launch his new startup. We, for one, are hoping that this startup will be in the flow-based lending space! We are rooting for him to be the Jonathan Rosenberg of flow-based lending: Jonathan was instrumental in bringing SIP Protocol to life as an IETF standard, and in helping to create Skype as a winning implementation of SIP Protocol as its Chief Technology Strategist. We hope Praveen’s path will have a similar trajectory, both in direction and impact! In parallel, he will continue to volunteer part-time for our PSP Connect (formerly M&A Connect) program where he has been active since the beginning. He will no longer be involved in our policy work.

Venky is moving to IDFC Institute to create a new Data Governance Network. We are at the cusp of a new data regime and data economy in India driven by Data Empowerment and Protection Architecture (DEPA), something that is very different from the paths taken by the US, Europe, and China. This Network will bring evidence-based inputs into the policy and practice of data governance; in this new world of data, it is key to secure empowerment and protection of each individual. Alongside this important new responsibility, Venky plans to keep volunteering part-time with iSPIRT on our software patents initiative where he has been active for many years.

When our full-time volunteers roll off to new challenges, they are a gift to the ecosystem. They carry with them an emboldened sense of what India can be, and an energized plan to make new things happen – in turn creating new capacity in the market.

Shifting Gears: Playground Orchestration
iSPIRT has been at work on the societal problem of democratizing credit for the last 4-5 years. We have made considerable progress, yet more needs to be done: Rajni is not yet being served as we would like it.

After some soul-searching, we realized that the next phase of ecosystem building for credit democratization needs a more deliberate orchestration of market and state actors.  Meghana Reddyreddy, a power volunteer, will drive this phase; she will don the mantle of Playground Orchestrator for Democratizing Credit.

Volunteering with iSPIRT
Our central tenet is that societal problems are solved by market players. To come up with truly innovative solutions, these market players need various kinds of public goods – scaleable public platforms, supportive policy and procedural guidelines, transformational market catalysts, and world-class playbooks – to succeed. Our volunteers build these public goods in a selfless fashion. They are often the most talented and driven folks in the ecosystem. Some do this public goods building on weekends. Others, like Praveen and Venky, take a year or two off from their career to do this.  

If you want to be one of these volunteers, read our Volunteer Handbook (https://pn.ispirt.in/presenting-the-ispirt-volunteer-handbook/) and feel free to reach out to us.

By Sharad Sharma, Pramod Varma, Siddharth Shetty for Volunteer Fellow Council and Pankaj Jaju for Donor Council.

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Software Patents FAQs for Indian Startups

A couple of months ago, you might have noticed press reports where iSPIRT took a strong stance against software patents in India. The global experience with software patents has been that it leads to increased patent litigation, and uncertainty for startups. Thanks to some enlightened policy making, India has been relatively free of the kind of software patent lawsuits that we see in the US, and we would like to keep it that way.

At the same time, we cannot wish away the fact that software patents are a reality in countries like the US, and every company needs to have a software patents strategy in place. We therefore set out to understand the most frequently asked questions (FAQs) and answer them. In talking to various stakeholders, we found that even veteran entrepreneurs would often confuse copyrights and software patents. We also found that there is very little awareness of what software patents actually are. Therefore, we curated a set of FAQs and answered them in very simple layman terms. Our goal is that even entrepreneurs who are beginning their startup journey should be able to get an understanding of this topic. Even if you are a veteran in the IT industry, these FAQs might help you avoid some common misconceptions.

We therefore invite all entrepreneurs to put this one their, “Must Read” lists. We also invite you to submit your questions and feedback to these FAQs. We view this document as a first step in understanding this topic, and look forward to your feedback to make this FAQ more useful to you.

Venkatesh Hariharan, Samuel Mani and Mishi Chowdhary
Software Patents Expert Team

Software Patents FAQs for Indian Startups

Executive Summary

As India’s product startup ecosystem grows and becomes global, the issue of software patents becomes increasingly important. Most startups work extremely hard to grow their marketshare, but do not realize the importance of a software patents strategy for protecting their interests. This document answers some of the most common questions that startups have around software patents. It outlines the importance of a software patents strategy, clarifies some of the common misconceptions around software patents, and proposes a software patents strategy for Indian startups to consider.

Note: This set of FAQs includes information about legal issues and legal developments. These are for informational purposes only. These are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact a lawyer for advice on specific legal issues. We don’t accept any responsibility or liability for the accuracy, content, completeness, legality, or reliability of the information contained in these materials.This document is intended for startup founders and executives. It aims to be a starting point for discussions around software patents, and not the last word on this subject.

1. Why do I need a software patents strategy?

Every IT company, and especially one that aims to go global, has to have a software patents strategy in place. This is one area where the old saying, “A stitch in time saves nine,” holds true. A proactive strategy can help many software startups improve their valuations and prevent a lot of grief. Some Venture Capitalists (VCs) tend to assign a higher valuation to startups that have software patents, though this depends from VC to VC.

Patents can also help startups from a defensive perspective. When a startup is flying under the radar, software patents might not be much of an issue. However, when a startup grows big, starts hitting the headlines, or goes global,[1] that is the time when the risk of patent litigation shoots up. Apart from being an expensive business, patent litigation can create a cloud of uncertainity over your business, and potentially scare away clients.[2] Startups that plan to take their products and services to markets like the US, that allow software patents, should be especially careful about software patents.

2. What is a patent?

A patent is a state granted monopoly to an inventor, in return for disclosure of the details of the invention. This monopoly is granted for a limited period of time. The classical test of whether something is an invention or not is novelty, usefulness, and non-obviousness. The word patent originates from the Latin word, patere, which means “to lay open” (i.e., to make available for public inspection).

3. India does not allow software patents. Therefore, why should I be worried?

Section 3 of the Indian Patent Act deals with things that are not considered to be inventions within the meaning of this Act. Section 3(k) of the act says that, “A mathematical or business method or a computer programme per se or algorithms are not patentable.” However, the definition of “per se “ has proven to be controversial. The recent guidelines from the Indian Patent Office on Computer Related Inventions would have the effect of making software a patentable subject matter, as long as it has technical effects. Many, including, iSPIRT have argued that this is against the will of the Indian Parliament, which had rejected a move to grant patents on technical effects of software.

Despite the controversy over how “software per se” should be defined, the number of patent applications that are being filed at the the Indian Patent Office is multiplying, and there is a sharp surge in the number of patents granted by the Indian Patent Office every year. A large number of these patent applications cover software in some form or the other. The legal validity of such patent grants is in question, but if these patent owners begin suing for infringment, it can cast a cloud of uncertainity over startups.

Startups that aim to go global will have to have a software patent strategy in place, when they enter markets like the US, where software patents are granted. This is because software patent litigation is an expensive business and a defensive mechanism needs to be in place. It would be advisable for such startups to hire a patent lawyer and check if they might be infringing on any software patents. If they are indeed infringing, they might have to either obtain a licence to use those patents or rewite their code, to ensure they are not infringing.

If your startup has an app (or builds apps for others), it has to be kept in mind that the jurisdiction of the app store is the US, since the major app stores are owned by companies based in the US[3].

Therefore, being proactive, and putting a software patent strategy in place, will help your organization in the long run.

4. If I cannot use patents to protect my software, how else can I protect it?

Software is algorithms for computers in human readable terms. Software can be protected through copyrights and trade secrets. Trade secrets offer certain advantages over software patents.

  1. Patent protection does not cover “abstract ideas” whereas trade secret protection can. Trade secret protection can cover almost any information (including code) which is secret and which provides an economic advantage over others.
  2. Patent protection is for a limited period of time (depending upon jurisdiction) but trade secret protection is available indefinitely.
  3. Patent protection is expensive and time consuming to obtain. In India, trade secret protection can be obtained simply by way of confidentiality and non-disclosure agreements. It is quicker and cheaper.

5. What is the harm if we also use patents, in addition to copyrights and trade secrets to protect software?

Protecting software with patents add another layer that complicates the lives of software developers. Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a program, they may be liable for infringement, in countries that allow for software patenting.

Even end-users who use software for routine, everyday activities may be liable for infringement. For example, in the US, which has the most permissive software patenting regime, McDonalds and 400 other entities were served notices for violating DataCard’s patent on “Method for processing debit purchase transactions using a counter-top terminal system.” In another case, a company called Beneficial Innovations, sued the New York Times, You Tube and many other media organizations for allegedly violating its patent on “Method and system for playing games on a network.” Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole.

6. What are the defensive strategies that I can adopt?

You could join a patent non-agression network like the Open Invention Network (OIN), which is the largest patent non-agression community with 1,700 members as on August 2015. Membership to OIN is free, and members have to agree that they will not sue other members of OIN around the Linux System, a list of 2,300 packages of core infrastructure technology in Linux and open source. Members also get a royalty free license to 1000 software patents owned by OIN, worth around $90 million. OIN was formed to protect Linux and Open Source users from patent litigation.

Startups that are not in the business of licensing patents to others should consider filing defensive patents. This can be an expensive business costing around $15,000 per patent (Rs 9.45 lakhs approximately).

Startups that have a unique idea, but do not want to go to the expense of filing a patent can consider submitting their ideas to www.defensivepublications.org that will review ideas and take care of patenting selected ideas. Defensive publications, which are endorsed by the US Patents and Trademarks Office (USPTO) as an Intellectual Property Rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art. This powerful preemptive disclosure prevents other parties from obtaining a patent on the product, device or method. It enables the original inventor to ensure that they have access to their invention by preventing others from later making patent claims on it. It also means that they do not have to shoulder the cost of patent applications.

7. What are the different forms of IP and can you offer a comparison between them?

Different forms of IP1Different-Forms of IP2Different Forms of IP3Different forms of IP4

 

8. How are patents granted? Do the norms vary from country to country?

The procedure for granting patents, the requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevantpatentability requirements, such as novelty, usefulness, and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without permission.


9. If patents are granted by a sovereign state, does it mean that I have to file for the same patent in multiple geographies?

The procedure for granting patents, the requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevantpatentability requirements, such as novelty, usefulness, and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without permission.

Under the World Trade Organization‘s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any invention, in all fields of technology,]and the term of protection available should be a minimum of twenty years. Nevertheless, there are variations on what is patentable subject matter from country to country. New Zealand, for instance, has taken a stance that software is not an invention and therefore, does not grant software patents.

10. What are patent trolls or Non Practicing Entities (NPEs)?

Patent trolls or Non Practicing Entities (NPEs) are organizations that exist solely for suing as a rent seeking or economic activity. Patent trolls usually strike when a startup is being acquired, is going public, or it announces the acquisition of large clients.

11. How difficult is it to file for a software patent, in jurisdictions that allow it?

Filing patents is a tedious process. Each step in the process of patent grant including filing, examination and closure is an expensive one. Companies with limited resources should in fact, give very careful consideration to a decision to file for patents. Many companies including huge market players file patents as a defensive measure rather than an offensive one. Therefore, it is important to focus on only high quality patents because only those provide a reliable and secure defensive cover. If a company has decided to invest huge sums of money in patenting activity, it would be prudent to have one good quality patent (for instance) rather than several patents of questionable merit and quality. What constitutes a good quality patent is dependent on the specific facts.

It is important to remember that patents are granted on a country by country basis and its prosecution is also on a country by country basis. Not all countries consider software a patentable subject matter. While patent applicants may file applications in various countries (which are signatories of the Patent Cooperation Treaty) with an advantage of the same priority date (i.e. the date on which the application was first filed in any country), a PCT application is helpful only to the extent of locking in on priority date. It does not however, ensure smooth patent grant procedures in all jurisdictions and the same is subject to local laws relating to patentable subject matter and examination rules. Several patent applications lose out in the examination stage in jurisdictions which have strict examination procedures and a tighter filtering mechanism for quality.

Given the above, there are obvious disadvantages to disclosure of technology a company may have spent a great deal of money and resources creating/developing. First of all, it makes otherwise confidential information public and makes the company more vulnerable to patent infringement suits. Secondly, it exposes the company’s business strategy or core technology asset to be accessed by entities in other jurisdictions who may have easy access to a patent in their country. There is no telling who may actually become privy to the company’s valuable technology assets and the company would not even be in the know if a potential competitor in a different country may use it to its advantage, especially in countries where software is not patentable. A lot of time, resources and money may therefore get wasted on waiting for a patent grant which may be well spent on actual innovation by the company.

Many high-tech companies, especially in the software product space, use trade secrets to protect their truly innovative and valuable assets (including business strategy forming the ‘secret sauce’ of their business, so to speak) because it is considered a much more effective mechanism to protect their IP without giving away or disclosing any part of their confidential information. Trade secret protection is much less complicated, much more economical and also quite effective in protecting a company’s IP assets compared to the complicated, tenuous and confounding patenting system. While there are specific trade secret laws in the US, in India we have to rely on implicit protections under the Contract Act.

[1]               See “How Life360 won its patent war,” at http://arstechnica.com/tech-policy/2015/03/how-life360-won-its-patent-war/

[2]                For an example see http://www.feld.com/archives/2012/08/a-software-entrepreneur-on-the-madness-of-software-patents-and-trolls.html

[3]               “More app developers sued over patent claims,” at http://www.theguardian.com/technology/2011/may/18/app-developers-sued-over-patent-claims

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 SFLC.in, 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. SFLC.in 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.

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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.