[Fsf-friends] Confusion over computer programs

[Ramanraj K]

The patent office has published a draft practice manual at  
http://patentoffice.nic.in/ipr/patent/manual.htm and called for 
suggestions:

<quote>
MANUAL OF PATENT PRACTICE & PROCEDURE - PATENT OFFICE, INDIA (2005)
Last Date of Submission of Suggestions extended upto 20th August 2005
</quote>

Though TRIPS clearly says "Computer programs, whether in source or 
object code, shall be protected as literary works under the Berne 
Convention", and the Patents Act also excludes computer programs from 
patentability, the Patent Office, on the strength of many US cases, has 
tried to classify computer programs and has attempted to make a few 
exceptions.  Computer programs cannot be patented as part of any 
invention, as much as any mathematics involved in an invention cannot be 
patented. The draft manual has been published at the above site, and 
please send your feedback so that we may address the issues involved.

A few quotes from the Draft Manual:
<quote1>
3(K) a mathematical or business  method or a computer program perse or
algorithms. 
computer program product is claimed  as "A computer program product in
computer readable medium",  "A computer-readable storage medium having
a program recorded thereon", etc. In such cases the claims are treated
as  relating to  software perse,  irrespective  of the  medium of  its
storage and are not held patentable.

Examples in respect of other categories of subject matter are
            Scheme or method of bookkeeping.
Business method in the field of accounting.
Method of tax collection.
A contents display method for displaying contents on a screen,
A method for controlling an information processing apparatus, for
    communicating via the Internet with an external apparatus,
A method for transmitting data across an open communication channel on
    a wireless device that selectively opens and closes a communication
    channel to a wireless network, and each wireless device including a
    computer platform and including a plurality of device resources that
    selectively utilizes a communication channel to communicate with other
    devices across the network

    All the above methods though utilise computer programs for its 
operation,
    are not computer programs as such and hence allowable

    On the other hand,
    A method of executing a computer program, in which at least part of the
    copy of the program available for execution is analysed to determine
    whether or not any change has been made thereto, and in the event 
that a
    change is detected, a further copy of the program is retrieved and 
caused to
    be executed instead of the first copy,
    A method for generating a new computer program using a software
    development tool,
    These are the programs solely intellectual in its context and hence not
    allowable.
The Guidelines for examination of Computer-related inventions are given in
Annexure 2
<\quote1>

The examples used to justify patentability for some of the kinds of 
computer programs, is very vague and was very difficult for me to 
follow.  Could someone please explain what it means?

<quote 2>
9.CONCLUSION

The statute excludes from patentability the software per se. The 
inventions relating
to the application of the computer program or software is held 
patentable under the
Indian Patent Act, 1970 when claimed in combination of hardware and 
software
components of a computer which provides a "technical advancement " over the
prior art. It is necessary for the applicant to describe the "technical 
contribution" to
the prior art when the invention involves software. The technical 
problem, which
needs to be solved by the invention, should be sufficiently described as 
to how the
hardware is controlled by the software to overcome the previously described
problem. The "technical character" of the invention should be brought 
out clearly in
the claims.
</quote2>
TRIPS is conveniently forgotten, and heavy reliance has been made upon 
US decisions that have no application to India.  IMO, US should change 
its patent practice to fulfill its TRIPS obligations and any illegal 
practices in the US that are contrary to TRIPS cannot be cited as 
examples here in India.
Besides, the manual gives the following example:
         <quote>
EXAMPLE (1) If one has invented a new kind of spray bottle patents may be
granted for -
    .  The bottle itself (a product)
·  A chemical in the plastic (chemical composition)
·  The spraying mechanism (an apparatus)
·  How you extruded the plastic (a process)
</quote>

I suppose, if the contents of the spray bottle happened to be water, the 
patent office would not patent water along with the new invention.  If 
we can see why water is not patentable along with the sprayer, then 
there should be no difficulty in seeing that novel computer related 
hardware inventions could be easily patented, excluding any computer 
programs it may use.  The computer programs the invention uses would be 
"protected" by copyright law, but never fall within the scope of the 
patent.

Please comment.  Let us please take up the issue as soon as possible.

Regards,
Ramanraj.