[Fsf-friends] Re: [Ilugc] Fwd: FSF-India response to the Patents (Amendments)Ordinance, 2004

[Ramanraj K]

Shiv, thanks for your comments.  Before the amendment, Section 3(k) of 
the Patents Act, 1970,  falling under "inventions not patentable", stood 
as follows:

"3(k) a mathematical or business method or a computer program per se or 
algorithms;"

It should be left alone in peace.

>>Please confine this thread to the amendments proposed to 
>>Section 3(k) *only*, which is of immediate interest to the FSF India.
>>
>>   "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;"
>>
>>    
>>
>Comments:
>
>1) Software already has copyright protection, and in addition,
>closed-source software also has trade-secret protection. It definitely
>doesn't need patent protection in addition. 
>
Correct.  TRIPS in fact obliges the member states, India, US and all the 
others there, to the do the following, which are very clear and 
self-explanatory:
<quote>
Article 9
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne 
Convention (1971) and the Appendix thereto. However, Members shall not 
have rights or obligations under this Agreement in respect of the rights 
conferred under Article 6b is of that Convention or of the rights 
derived therefrom.
2. Copyright protection shall extend to expressions and not to ideas, 
procedures, methods of operation or mathematical concepts as such.
 
Article 10 Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be 
protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine readable 
or other form, which by reason of the selection or arrangement of their 
contents constitute intellectual creations shall be protected as such. 
Such protection, which shall not extend to the data or material itself, 
shall be without prejudice to any copyright subsisting in the data or 
material itself.
</quote>

The amendment seriously goes against the grain of the above Articles.

The mischief, as though the amedment is required to cover "embedded 
software", is apparently done by misinterpreting Article 27 of TRIPS, 
dealing with "Patentable Subject Matter" which begins as follows: "1. 
... patents shall be available for any inventions, whether products or 
processes, in all fields of technology, provided that they are new, 
involve an inventive step and are capable of industrial application..." 
 It is meaningless to justify patents for "embedded software" on the 
basis of Article 27, and this should explain the source for the 
mumbo-jumbo below :

>
>2) This "application to industry" phrase is mumbo-jumbo. Every single
>piece of software is applicable to industry - effectively, the phrase
>provides a general catch-all exemption.
>
>3) The "combination with hardware" phrase is even more mumbo-jumbo. All
>software functions *only* in combination with hardware. How else are you
>going to use the program, hand-simulate it with paper-and-pencil in a
>computer science class? Another general catch-all exemption.
>
It would be clear that TRIPS plainly prescribes copyrights for computer 
programs, and the above mumbo-jumbo is merely a fanciful invention ;)