[Fsf-friends] THE PATENTS (AMENDMENT) ORDINANCE, 2004

[Raj Mathur]

[Cross-posted]

>>>>> "RK" == Ramanraj K <Ramanraj> writes:

    RK> The THE PATENTS (AMENDMENT) ORDINANCE, 2004 is available
    RK> online at
    RK> http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf

    RK> The portion immediately relevant for us is the amendments to
    RK> Section which shall come into force on the 1 st day of
    RK> January, 2005. : <quote> 3. In section 3 of the principal Act,
    RK> (a) in clause (d), for the words new use , the words mere new
    RK> use shall be substituted; (b) for clause (k), the following
    RK> clauses shall be substituted, namely:

    RK> (k) a computer programme per se other than its technical
    RK> application to industry or a combination with hardware;

    RK> (ka) a mathematical method or a business method or algorithms;
    RK> .  </quote>

    RK> Provision (k) of Section 3 of the Patents Act, 1970 that deals
    RK> with what are *not* inventions, reads as follows "a
    RK> mathematical or business method or a computer program per se
    RK> or algorithms;"

    RK> With effect from Jan 1, 2005, software in its "technical
    RK> application to industry" or software in "a combination with
    RK> hardware" would become patentable.  The words "technical
    RK> application to industry" is far too general, that could
    RK> virtually include any software, besides being vague and
    RK> ambigious to say the least.  We should respond appropriately,
    RK> as soon as possible, to prevent these provisions from being
    RK> given effect to.

Sorry, I don't understand the legal gobbledegook.  However, Arun Mehta
had posted a great article on software patents, and has kindly given
permission to use that text as a basis for any action we may want to
take.

I'm enclosing the whole text here, partly because it's worth a read
and partly because I'd like people to be able to modify and use it
without having to wait for 'net access (RMS for instance mostly reads
mail offline AFAIR).

From: Arun Mehta <arunlists@softhome.net>
Sender: india-gii-bounces@lists.cpsr.org
To: India Gii <india-gii@cpsr.org>
Subject: [india-gii] Changes in Bill to give patents for software
Date: Mon, 27 Dec 2004 12:52:57 +0530

[snip]

The Absurdity of Software Patents
by Arun Mehta (IN)

Software patents have a dubious legal basis, are unworkable, and
hamper industrial growth. They started in the US, where you are not
allowed to patent the laws of nature, and in two US Supreme Court
cases (Gottschalk v. Benson, 1972, and Parker v. Flook, 1978) the
Court extended this principle to computer algorithms and software
techniques.

Yet, in the 1981 case Diamond v. Diehr, the Court said that just
because there was software in an industrial process didn't mean that a
patent could not be granted. While hardly in the spirit of the
judgement, based on it, software patent floodgates were opened - for
instance, IBM alone, in 2002 was issued 3411 patents, most of them
relating to software.

While conducting any patent search is a slow process, we have far more
serious problems in software. Any reasonably sized computer program
contains literally thousands of algorithms and techniques, each
considered patentable by the standards of the patent office. Most of
these, however, are not considered that significant by other
programmers, who, when faced with similar problems, would routinely
come up with similar solutions.

There is no system for even classifying computer algorithms, let alone
performing a database search. To call the relevant literature vast is
an understatement. It includes user manuals, billions of lines of
source code published on the Internet and elsewhere, and articles in
different languages in thousands of computer magazines, electronic and
print. Whereas a scientist in a traditional field may produce 20 or 30
pages of published material each year, a programmer easily produces
that in a couple of days. Even if it were possible to check all of
them, no company could afford the delay this would entail.

It is therefore unreasonable to expect a software company to license a
patent for every algorithm it uses. Even if a company does find out
what patents it needs to license, that is not enough: the software it
writes might violate a patent yet to be issued. If software patents
were to be rigorously protected, it would stop innovation in software
in its tracks.

For the software industry, the implications would be catastrophic:
since software does not wear out, the only way the companies that
produce it can continue to make money is to innovate, to add new
features to existing software. Since all other industries rely heavily
on software innovation for their own progress, the impact on them
would be serious too. An example is the attempt to introduce MPEG-4, a
new movie compression standard, highly significant for the consumer
electronics and media industries. This, however, is held up by the 16
owners of 29 patents involved.

Large software companies have found a work-around. Each of them owns
many software patents, which they have licensed to each other. With
the threat of lawsuits, they can easily exclude emerging
competitors. This has serious implications for poor countries like
India, which are trying to make a breakthrough in the global software
market. The consequences are particularly damaging for small
companies, possibly run by students out of a garage or dorm room,
which do not have the resources to perform the required searches, and
pay for the patent licenses. It is such companies that have been the
source of substantial innovation. Software patents, therefore, help
create an unhealthy oligopoly in a critical industry segment.

It can also be argued that software patents are unnecessary. The
companies that have been most successful in this business, such as
Microsoft, did not rely on patents for their competitive edge. There
is now a vast body of open source software which other developers use
freely without fear of being sued for patent violation, in a process
antithetical to the very concept of patents.

Software patents are an excellent illustration of the absurdity of
patenting ideas and mathematical equations, particularly in an
electronic age where information is easily replicated and
distributed. This discussion, however, is not new: Thomas Jefferson,
who ran the US patent office and knew the patenting process
intimately, had this to say: "If nature has made any one thing less
susceptible than all others of exclusive property, it is the action of
the thinking power called an idea, which an individual may exclusively
possess as long as he keeps it to himself... Its peculiar character,
too, is that no one possesses the less, because every other possesses
the whole of it. He who receives an idea from me, receives instruction
himself without lessening mine; as he who lights his taper at mine,
receives light without darkening me. That ideas should freely spread
from one to another over the globe, for the moral and mutual
instruction of man, and improvement of his condition, seems to have
been peculiarly and benevolently designed by nature, when she made
them, like fire, expansible over all space, without lessening their
density at any point, and like the air in which we breathe, move, and
have our physical being, incapable of confinement or exclusive
appropriation. Inventions then cannot, in nature, be a subject of
property."

The problem for industry, though, as highlighted in a 2000
Pricewaterhouse Coopers study, is that 78% of the total value of
American S&P 500 companies are intellectual assets, which they are
desperate to protect. While they recognize the dubious nature of
software patents, they have no alternative means of protection: some
attempts were made to apply copyright law, for instance when Microsoft
Windows copied the Apple-style graphic user interface, but these
attempts were unsuccessful in court. As they say, if all you have is a
hammer, every problem looks like a nail.

Faced with complete corporate intransigence on the issue, civil
disobedience seems the only means for civil society to arrive at a
sane solution. This is not unlike the situation Mahatma Gandhi faced,
when the British rulers of India imposed a tax on salt, which he
overcame by launching his famous salt march, culminating in his
illegally picking up salt from the sands of Dandi beach. Indeed, ideas
are the salt of the information age, justifying similar action.

[snip]

Regards,

-- Raju
-- 
Raj Mathur                raju@kandalaya.org      http://kandalaya.org/
       GPG: 78D4 FC67 367F 40E2 0DD5  0FEF C968 D0EF CC68 D17F
                      It is the mind that moves