[Fsf-friends] Our response to the Patents (Amendments) Ordinance, 2004

Ramanraj K ramanraj.k@gmail.com
Fri Mar 4 07:59:19 IST 2005


Vijay Kumar wrote:

>Ramanraj K <ramanraj.k@gmail.com> writes:
>
>>http://www.indianexpress.com/full_story.php?content_id=65640
>>
>>Please post any links, articles, views or opinions that could help in
>>voicing our concern against the proposed drastic amendments to the
>>Patents Act.
>>    
>>
>Are we not too late?
>
Our response to the ordinance is enclosed below.  It is now clear that 
the Patents (Amendment) Bill, 2005, to replace the Patents (Amendment) 
Ordinance, 2004 (No. 7 of 2004) promulgated on 26.12.2994, would be 
taken up during the first part of the Budget Session, 2005, and the same 
would  be placed before  a Standing  Committee for  further discussion 
upon the Bill.  Please feel free to comment on the representation 
prepared earlier, so that we may send in  better demands to the Standing 
Committee.  Please confine this thread to the amendments proposed to 
Section 3(k) *only*, which is of immediate interest to the FSF India. 
 The others amendments are more serious and will surely ruin life, but 
they have to be dealt with separately.

Thanks,
Ramanraj.
__

**

  Representation made  by the Free  Software Foundation  of India
     to the Government of India to immediately withdraw
 THE PATENTS (AMENDMENT) ORDINANCE, 2004 (Ordinance No. 7 of 2004)
with regard to amendments made to Section 3(k) of the Patents Act, 1970


Introduction:

The  Free Software Foundation  of India  is a  non-profit organisation
promoting  the development,  awareness, and  use of  free  software in
India.  We are very concerned  about the recent amendments made to the
Patents  Act,  1970,  by  the  Patents  (Amendment)  Ordinance,  2004,
amending the provisions with regard to computer programs as follows:

   "3. In section 3 of the  principal Act, (a) in clause (d), for the
   words new use  , the words mere new use  shall be substituted; (b)
   for  clause  (k),  the  following clauses  shall  be  substituted,
   namely:

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

   (ka) a mathematical method or a business method or algorithms;"
  Allowing  patents over  any  kind of  computation  seriously harm  and
hamper the  creativity, productivity and freedom  of all, particularly
software developers while writing code.  Many organisations, including
the Free  Software Foundation  have been campaigning  against software
patents the world  over. We are shocked and  surprised that amendments
to the  Patents Act,  1970, with regard  to computer  programs, should
have  been  introduced  so   suddenty  in  India,  by  a  Presidential
Ordinance, without any public debate or prior announcement at all.  We
hope  this memorandum  would  restore  the status  quo  as quickly  as
possible, for all the following reasons:
  1.    Amendment  is   ambigious  and   capable  of   easy   abuse  and
     misinterpretation:
  Though under the amended clause (k), computer programs per se continue
to be not patentable, the  exceptions made thereto are not clear.  All
computer programs work in  combination with hardware, and all computer
programs have  technical application to industry,  particularly to the
software  industry.  A  literal interpretation  of the  amendment with
regard to  computer programs  is dangerously misleading,  creating the
impression as though any computer program is patentable.  However, the
Ministry  of  Commerce  and  Industry  has made  a  statement  to  the
following effect at http://pib.nic.in/release/release.asp?relid=6074

   "In  IT, the  trend is  to have  software in  combination  with or
   embedded  in hardware such  as in  computers or  cell phones  or a
   variety  of  other  gadgets.   Software  as  such  has  no  patent
   protection (the protection available  is by way of copyright); but
   the changing  technological environment  has made it  necessary to
   provide for  patents when  software has technical  applications in
   industry in combination  with hardware. This has been  a demand of
   NASSCOM."

There are  significant differences between  the statement made  by the
Ministry  of Commerce  and Industry  and what  the  ordinance actually
says, and  the intentions are not  apparent from the  wordings used in
the  amendment.  However,  even assuming  that the  provisions  of the
Patents Act  have been amended to  enable and make  provision for only
embedded software, which is a very  vague term, it would make in roads
into  the freedoms and  liberties required  by software  developers to
peacefully  continue  with  their  work  and  services.   Any  special
provisions  providing  for  patentability  of  computing  or  computer
programs under  the category "embedded software" is  needless, and bad
because:

   (a) The classification of computer programs into embedded software
       and others  is very superficial.   The key advantage  in using
       computer  programs is  that  logic can  be re-written  without
       re-wiring or physically modifying hardware.  Invariably, it is
       easy to re-write, copy, improve, and modify computer programs,
       and it is  quite possible to extend the  life and productivity
       of  hardware  devices   that  are  manufactured  using  scarce
       non-renewable  resources,  merely  by modifying  the  computer
       program.  People can, and  often do,  install new  software on
       embedded  computers  particularly  when  the  source  code  is
       available or to improve usability of hardware. 
   (b) The  classification is arbitrary and opposed  to principles of
       equality, and the very objects of the Patents Act. Let us take
       an illustration,  for example a computer  program named `foo'.
       It  is clear  that foo  is not  patentable per  se,  under the
       amended  clause   (k).   But  then,  foo,   in  its  technical
       application   to    industry   is   made    patentable.    The
       classification, based  on mere usage, making  foo an invention
       only  in  "its  technical  application to  industry",  has  no
       rational nexus to  the object of the Patents  Act, and plainly
       violative of  Art.  14 of  the Constitution of India.   One of
       the  avowed objects  of the  Patents  Act is  "to ensure  more
       effectively that patent rights are not worked to the detriment
       of the consumer or to the prejudice of trade or the industrial
       development of the country".  Introducing patents for any kind
       of computer programs is detrimental and opposed to the objects
       of the Act.  The question how software patents are detrimental
       and   harmful  is  elaborately   analysed  and   discussed  at
       http://lpf.ai.mit.edu/Patents/industry-at-risk.html

2. Amendment is opposed to Article 39(c) of the Constitution of India:

The Directive Principles enshrined in the Constitution of India, under
Chapter IV.  Article 39 reads as follows:

   "39.  Certain principles  of policy to be followed  by the State.-
     The  State  shall,  in   particular,  direct  its  policy  towards
   securing-
     (a) that the citizen, men and women equally, have the right to
       an adequate means of livelihood;

   (b) that  the ownership and control of  the material resources
       of the  community are so  distributed as best  to subserve
       the common good;

   (c) that the operation of  the economic system does not result
       in the concentration of  wealth and means of production to
       the common detriment;"

The  software  industry  largely  earns revenue  by  providing  custom
services,  and  by  introducing  patents for  embedded  software,  the
software  service  providers would  be  hampered  by needless  claims,
litigation  and other  un-productive  disputes that  cannot be  easily
resolved.   Patents for  embedded  software would  lead to  increasing
concentration of  wealth and means of production  to common detriment.
It is  well known that Bill Gates  of Microsoft is the  richest man in
the world, and the patent regmime  would only go to promote the riches
of the  richest.  We  have no hesitation  in saying that  the needless
hair  splitting of computer  programs into  embedded/non-embedded will
only entangle the Indian  Software Industry in litigation, obstructing
progress to common detriment.

Other harmful consequences of the amendment:

The  amendment would  disturb  the peace  prevailing  in the  software
field, and  may raise contentitious disputes  between various hardware
manufacturers, software developers and  entities, resulting in loss of
peace  in the  first place,  coupled with  loss of  revenue  and other
damages.  It  would undermine the  peace of mind required  by software
developers to  write robust code,  robbing and sapping energy  away to
indulge in  meaningless patent searches and  other needless exercises,
that are totally not suitable for the software industry. The amendment
would only increase the cost of developing software, and take away all
the advantages that India has  enjoyed so far in the embedded software
field.

Conclusion:

Rabindranath Tagore, in his Gitanjali, wrote:

   "`Prisoner, tell me,  who  was it  that  wrought this  unbreakable
   chain?'

   `It  was  I,' said  the  prisoner,  `who  forged this  chain  very
   carefully.   I thought  my invisible  power would  hold  the world
   captive leaving me in a freedom undisturbed.  Thus night and day I
   worked at the chain with  huge fires and cruel hard strokes.  When
   at  last  the  work was  done  and  the  links were  complete  and
   unbreakable, I found that it held me in its grip."
  It is trite to observe  that the amendments imposed will without doubt
chain and cripple the software industry in India, pushing the industry
into  the dark dungeons  of doubt,  confusion and  chaos.  It  is very
strange that NASSCOM should have invited the amendment, without taking
into consideration  the serious harm  and danger patents  for embedded
software  pose.    We  strongly  urge  the  Government   of  India  to
immediately  change its sudden  reversal in  policy, and  withdraw the
above Ordinance,  as soon as  possible, reverting to the  more mature,
and time  tested policies  and patent law  in force before  January 1,
2005, removing  the hurdles on the  way for the  smooth continuance of
our growth, progress and prosperity.

Therefore,
   FSF India requests the Government of India to immediately withdraw
   THE PATENTS (AMENDMENT) ORDINANCE,  2004 (Ordinance .No 7 of 2004)
   under Article 123(2)(b), with regard to amendments made to Section
   3(k) of the Patents Act, 1970.

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