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A new challenge to the legal profession, particularly in the domain of intellectual property rights, has been that of examining the idea of a software. New software, with varying levels of originality or innovation is created every day. If you made one unlike anybody else ever had before, would you patent it or copyright it? What would be the extent of protection granted by whichever one that you (or the law in your jurisdiction) choose? Should such a right even be given to the innovators? This piece will take a look at the Indian law, establish a position and also discuss changes that can be made to it. The basic difference between a copyright and a patent is that the latter typically protects an inventor’s right over an invention, which is a special method or means to do something. Processes or specifically designed machines are generally patented. A copyright on the other hand is granted over works of authorship like music or films, in order to prevent duplication. Now, software is in most cases lines of carefully written code. Hence, copyrights can and do (at least in law) prevent them from being copied. How this is exactly done can be the subject matter of a later post. However, there is also an ‘idea’ behind these softwares that their inventors want to protect. Hence if you make a software that magnifies text on pointing your cursor at it, you not only want to make sure that nobody is using your code but also want to stop any software that does that. This is more in the domain of a patent, and we shall now see to what extent can we have such a patent granted in India. To establish the Indian position, we must first consider the Indian Patents Act, whose section 3(k) states that “The following are not inventions within the meaning of this act- a mathematical or business method or a computer program per se or algorithms”. Now it may appear that our search has ended before it started here, but that is not the case. A procedure for determination has been lay the Patent Office in the Manual of Patent Office Practice and Procedure which clarifies the meaning of ‘a computer program per se’ and the scope of this section. The procedure says that after ensuring that the application does not fall under any of the other categories, the final test will be checking whether the application under consideration is for a computer programme or even a computer programme product. If the answer to that question is yes, it would be under the provisions of Section 3(k) and hence no patent could be granted. This is the test used to determine the applicability of Section 3(k). However, in my opinion such a clarification would only have been made because even the Patent Office agrees that not all software innovations are the domain of Section 3(k). To further elucidate this argument, some patents have been granted by the Indian Patent Office where the apparatus in question are software; one for ‘Tracking space usage in a database’ to Oracle; ‘Method and system for Text-segmentation’ to Google and even one for ‘Apparatus for transmitting and receiving data in a wireless communication system’ to Qualcomm. Hence, patenting a software in India is not an impossibility by anybody’s standards. However, when we look at the situation on ground, nearly all such ‘software patents’ that have been granted in India have gone to companies based abroad, usually the big names from Silicon Valley. A survey taken by SFLC showed that only 9 of the over 300 patents that were granted went to Indian entities. The reason for this is that these companies have a lot of financial power to hire the most competent lawyers, who draft the applications in such a manner that the application seems to be outside the scope of Section 3(k). The reasons for granting an application and rejecting another very often comes down to the manner in which it is presented and not in the end result of the invention. The Indian position as it stands has been tried to be amended in the past. At the time when the 2005 Amendment was being made to the Patents Act, there was a proposal to amend Section 3(k) as well, which would then read “a computer programme per se other than its technical application to industry or a combination with hardware”. However, this was not passed on the ground that it would ‘give rise to the monopoly of multinationals’, a statement that is open to interpretations with regards to how exactly the legislators envisaged that to happen. Such statements further lend weight to the belief that Indian law is rather restrictive with regard to software patents or that it even prohibits them. The argument mooted to justify the Indian position on software patents thus construed is best explained with an analogy. Software is fundamentally computer algorithms and software, like mathematical theorems is built on other software. If mathematical theorems were patented, many subsequent theorems could not have been discovered. Similarly, new software fundamentally depends on the existing one to be created. Granting patents would allow only the rich, who could afford the licensing fees to make any more innovations in the field. This may also be one of the reasons the legislators rejected the amendment as mentioned above. The US Supreme Court also recently gave a judgement in the Alice Corp case that somewhat subscribed to this view. It said that an abstract idea for a software cannot be patented, which in that particular case related to a (not specifically defined) computerised method of using data processing systems to direct the exchange of obligations which would reduce the risk involved. It is the notion of patenting ‘ideas of software’ that the Indian Patent Office is unwilling to entertain. The concept of patenting the idea behind a software is in my opinion one that would truly stagger the boom of innovation that we currently have in the industry, with every other person being able to create mobile phone applications or flash based web functions without a real fear of legal action. While a patent on technical softwares, such as the firmware for specific devices could actually be beneficial, applications for the same must be extremely carefully considered. The main goal of a patent is ensuring enough incentive to innovate. In cases where by granting one we are actually stemming innovation, we ought to be wary. However, the purpose of the loophole in the Act itself seems to be to allow patents that are beyond the concept stage and serving specific purposes. The exact end that is trying to be achieved is still hazy. Hence we could still use some more clarity on the issue and if the kinds of software patents that are allowed and not allowed are more accurately defined, it would not simply remain a matter of who has the most expensive lawyer in determining a patent grant anymore.