[Fsf-friends] No patents for mathematical or business methods or
computer programs per se or algorithms in India
Ramanraj K
ramanraj.k@antispam.org
Tue Dec 6 18:34:07 IST 2005
Rebentisch <arebenti at web.de> wrote to <in-help at ffii.org>
pointing to the following article:
http://www.mondaq.com/i_article.asp_Q_articleid_E_36364
India: Patentability of Softwares in India
30 November 2005
Article by Manisha Singh Nair
,----[Manisha Singh Nair wrote:]
| The Patents Act refers to computer programs in Section 3, which deals
| with inventions that cannot be patented. According to S. 3(k), a
| computer program per se is not patentable. This makes us think about
| what the term ?per se? stands for in this context.
|
| According to the Webster?s Encyclopedic Unabridged Dictionary, the
| term ?per se? refers to "by, of, for, or in itself; intrinsically". If
| we are to use this definition we can well assume that the software as
| such cannot be patented. But don?t the same words of the provision
| tell us something more- that if the claimed invention is some thing
| more than?mere? software, it is patentable?
`----
The Patents Act declares in Section 3, among other things, that "a
mathematical or business method or a computer program per se or
algorithms;" are not inventions within the meaning of the Act.
Under Section 7, every application for a patent shall be for one
invention only. It is fairly obvious that an invention that relates
to a mathematical or business method or a computer program in itself
or algorithms are not patentable in India.
We only need to investigate the situation when an invention
incidentally includes a computer program or even mathematical methods
as part of a single invention.
The Copyright Act defines "computer programme" and "computer" as
follows:
"computer programme" means a set of instructions expressed in words,
codes, schemes or in any other form, including a machine readable
medium, capable of causing a computer to perform a particular task or
achieve a particular result;
"computer" includes any electronic or similar device having
information processing capabilities.
The "computer" then refers to devices having information processing
capabilities, that may be
[1] electronic: Without doubt, laptop computers, desktop computers,
mainframes and other electronic devices with "information processing
capabilities" fall within the meaning of "computer". The general
scheme of a generic computer could be as follows:
+-------+---------------+--------+
| | | |
|Input>==> Information >==>Output|
| | Processing | |
| +----^v----^v---+ |
| | Storage | |
+-------+---------------+--------+
Fig 1: An electronic computer
[2] The definition also includes "similar devices" within the meaning
of "computer". That brings within the purview of the definition of
"computer", mechanical devices like abacus, slide-rules, the
Analytical Engine of Charles Babbage and any other device that could
do information processing.
+-+-+-+-+-+-+-+-+-+-+-+-+-+-+
| o o o o o o o o o o o o o |
| | | | | | | | | | | | | | |
+-+-+-+-+-+-+-+-+-+-+-+-+-+-+
| | | | | | | | | | | | | | |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
+-+-+-+-+-+-+-+-+-+-+-+-+-+-+
Fig 2: Abacus - a mechanical computer
Now, consider the following:
A set of instructions to operate an abacus.
A novel method to operate an abacus.
A set of instructions to operate an Analytical Engine.
Emulators that mimic an abacus or Analytical Engine.
Programs to operate electronic computers.
In all the above cases, the instructions are instructions in
themselves to enable computation on computers and there could be no
confusion whatsoever that they are "computer programs per se" and not
inventions withing the meaning of the Patents Act.
It is true that computers are universal machines, and we could express
many inventions as computer programs in the form of a list of
instructions. Many manufacturing processes could be expressed as an
abstract series of steps, that at first sight, would appear as though
the invention could be fully implemented as a computer program.
Closer analysis will reveal that "computer programs per se" are
clearly distinguishable from other inventions dealing with industrial
processes.
According to Patrick Henry Winston, "Artificial Intelligence" is study
of the computations that make it possible to [1]perceive, [2]reason
and [3]act." The dictionary meaning of "Intelligence" is "the ability
to gain and apply knowledge and skills". Only those inventions that
exhibit intelligence are patentable as Section 3(a) excludes "an
invention which is frivolous or which claims anything obviously
contrary to well established natural laws".
Intelligence is a natural attribute found exhibited in life forms, and
specifically required in an invention, to be patentable. ("AI" is
plainly, artificial "man made" intelligence, where the measure of
intelligence is only incidental). Intelligence exhibited by
inventions may be analysed as follows:
=================+===============+===============+====================
Intelligence/ |[1]Perception |[2]Reasoning |[3]Action
Invention |(input) |(logical steps)|(output)
=================+===============+===============+====================
Computer |input devices |information |output devices
| |processing |
-----------------+---------------+---------------+--------------------
Abacus |push beads with|instructions |read/feel position
|fingers | |of beads
-----------------+---------------+---------------+--------------------
Bread Making |flour,water, |step by step |bread
|salt,heat |mnf process |
-----------------+---------------+---------------+--------------------
Semifab Unit |silicon,gold, |VHDL & process |Microprocessor
|topography,etc | |
-----------------+---------------+---------------+--------------------
Humans |ears,nose,eyes,|brain, |arms,legs,speech,
|tongue,skin |nervous system |getital & excretory
-----------------+---------------+---------------+--------------------
Robots |vision,hearing,|software |move with wheels,
|IR,.. | |speakers, monitor ..
-----------------+---------------+---------------+--------------------
Fig 3: Analysis of Inventions based on Intelligence exhibited
With a computer, that by definition means only devices capable of
information processing, it is neither possible to input flour, water
or salt nor get bread as output.
The manufacture of bread may involve the following:
Step 1: Take one measure of flour
Step 2: Add two measures of water
Step 3: Mix flour with water and add 1/100th measure of salt & yeast
Step 4: Bake in oven for 25 minutes at 200 F
The above involves "mathematical methods" at each step, and the
invention could never be described without use of mathematical
methods. Under Section 10 of the Patents Act, the patent may be
supplemented with models and samples which however are not deemed as
part of the specification. Every invention could use other
inventions, mathematics, laws of physics, computer programs, and other
aids to describe the invention coherently, but they would never be
deemed as part of the claim. If the claim relates to just
mathematical methods or computer programs per se, then they would
simply be rejected as not being inventions within the meaning of the
Act.
It is very clear that "Software patents" are illegal and unlawful not
authorised by law in India.
Literary works upon patents are one of the chief benefits of the
patent system. For example, let us take Posilac 1 Step (US patent no:
4,985,404). This is used to "increase" milk yield of dairy cows. The
patent expires on Jan, 15, 2008 and until then, others cannot use
Posilac without permission from the patentee. However, nothing
prevents physicians or scientists from researching the patent to
publish articles or make other decisions about the effects of Posilac
on cows and humans. Research scholars could write simulator programs
to explain the invention or analyse its effects, without in any way
infringing upon the patent.
A final note: The line between hardware and software is vanishing.
Using a language like VHDL, it is possible to describe very complex
hardware as program constructs, and also implement a solution that may
defy the distinction maintained between "computer" and "computer
program". We may not be very far away from the day when engineers
come with a machine and say: "you never have to change hardware. If a
better design becomes available, just change the software, and the
atoms will rearrange themselves, and presto you would have a new
'hardware' in place". In such a situation, the computer program
itself could transform the computer, and this is certainly the next
logical step in electronic design automation. A large chunk of
hardware may then stand excluded from patenability, but then, it would
be a case of damnum sine injuria for hardware manufacturers.
__
More information about the Fsf-friends
mailing list