By Vanshika Mehra, 2nd year at NMIMS Kirit P. Mehta School of Law, Mumbai
INTRODUCTION
Ever thought that in today’s digital era, the computer programs, which are preponderantly used for nearly every invention, need protection themselves? If a hardware’s invention can be provided patent protection, what about software? An author of an invention puts his heart and soul in coming up with the software, which can be used by second comers too for further inventions. ‘Intellectual Property Rights’ is the domain of law, which is recognized as a medium to extend protection to the novel, unobvious and innovative inventions. Copyright grants protection to the literal expressions of the software but doesn’t protect the foundational or core part of the software, i.e. its concept.[1]A Patent is an exclusive right that is granted for the invention of a product or a process or the development of a design, which provides a new way of doing things or new technical solution to a problem. It gives the inventor the monopoly over the design, product or process for a definite period; and the people of the country in which the patent is granted, cannot use, make, sell, export/ import the claimed invention without the permission of the patent holder. Although it doesn’t have a legal definition, a software patent is generally defined as a type of utility patent on a piece of software, such as a computer program or the performance of that computer program.[2]This article aims at discussing the controversies about the patentability of computer programs.
THE LAW
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the international legal agreement between the member nations of the World Trade Organization (WTO); providing minimum standards, related to the regulation of IP Rights, which the members shall comply with. Article 27[3] of TRIPS affirms the availability of patents in the field of technology; provided that it is novel, involves an inventive step, and has industrial application. Also, there is nothing mentioned in Paragraphs 2 and 3 of the article, which can exclude patentability in the technological field, but still, there are certain controversies.
Marty Goetz is known to be the first person in the history for filing a software patent and having it granted.[4] His rationale was that patents protect inventions, and software, after all, is a set of instructions put together to perform a task, that task being an invention. The already prevailing controversy regarding the patentability of software program didn’t subside, but remained afoot; the question of controversy being if something as intangible as the software is worthy of being granted a patent.
In India, the IP laws have been amended time and again as far as the software industry is concerned. Although software programs are protected under copyright, patent, and sometimes under trade secrets, but still there is no specific law that deals with its protection, wherewith technological advancement it is not incorrigible to copy it. Even the Indian Information Technology Act of 2008 doesn’t contain a provision about IP protection of computer software and programs. Where section 3 of the Indian Patent Act of 1970 enlists non- patentable inventions, under Section 3(k), patentability of ‘Computer Programs per se’ has been restricted. The insertion of the words ‘per se’ following ‘computer programs’ has been clarified in Rajya Sabha’s Report on the Patents Second Amendment Bill, 1999 as:
“In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of the patent if they are inventions. However, computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose.”[5]
The aforementioned statement reflects the intent of the legislature to ensure the patentability of genuine inventions. This was affirmed by the 2017 guidelines for examination of ‘Computer Related Inventions (CRIs).’ The importance was given to ascertaining that CRI is technical, and is advanced in comparison to the existing knowledge or has economic significance for being excluded from section 3 of the act.[6]In the recent Delhi High Court judgment ofFeridAllani v. Union of India[7] 2019, it was held that the bar has been put on the patenting of ‘computer programs per se’ and not on all the inventions base on such programs. The court also emphasized that in the current digital world, it would be retrograding to hedge such software program-based inventions from patenting.
DOES PATENT RIGHT OVER SOFTWARE OVERLAP WITH ITS COPYRIGHT?
Both IP Rights, patent and copyright, are valid to be granted for the legal protection of a computer program. Copyright protection is extended to the expression of creativity or literal works, provided it is original. According to section 2[8] of the Copyright Act of 1957, computer programs are covered under literary works. A copyright doesn’t even require formal registration, but automatically gets attached to the original piece of work.
However, the ideas that go behind the program, methods of operation embodied in the software, procedures, or function to be served by the software don't fall within the literal category of work. For instance, an algorithm, a programming language, or format of data files used in the program are factual and have a non-literal expression, making them non-eligible for being copyrighted.[9]The difference in the objects to which IP Rights have to be granted implies that there is no overlapping of copyright and a patent right regarding a computer program.
There have been controversies regarding the patentability of the computer programs because of the misconceptions associated with section 3(k) of the Indian Patents Act, 1970. In the US, where patentability of software is now well- established, it has been argued that patents are meant to protect the functions concluded from the implementation or application of the formula in a structure or process, and thus an invention using a mathematical formula, computer program or digital program would be qualified for patentability.[10] In many countries, American Jurisprudence is sometimes used to decide the issue, but the basic features of non- obviousness, innovation, novelty, technical effect, and industrial application are of paramountcy.
CONCLUSION
IP Rights provide people with the incentive to make creative inventions. Not recognizing the efforts of the inventor by not extending patent protection to the conceptual and procedural part of the software would act as a hindrancefor further growth and advancement. Once granted with the patent right, the owner can give the access to other authors or enter into a licensing agreement, thereby enabling inventions.
In gist, the protection of computer program is largely done under copyright law in India, but it doesn’t decrease the scope of aprogram’s patentability; however, the exploration is required under the Indian Jurisprudence. Despite the clarifications about the prevailing patent law on software programs, the overlapping of copyright and patent right is considered true. But the fact that there is a difference in the type of intellectual property protection, granted for two different and non-equivalent expressions, i.e. literal and non-literal cannot be left to oblivion. Although, a good extent of evolution has taken place regarding the patentability of the computer programs, yet specific and unambiguous legislation needs to be formulated regarding the same.
REFERENCES
[1] “Computer Programs and Business Models.” [2] “Software Patent.” [3]Malbon, Lawson, and Davison, The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, 2014. [4]Smith, “Unsung Innovators.” [5] “Full Text of Report of the Joint Committee on the Patents (Second Amendment) Bill, 1999.” [6] “Revised Guidelines for Examination of Computer-Related Inventions (CRIs) - Intellectual Property - India.” [7] CM APPL. 40736/2019 [8]“Copyright Act, 1957.” [9]“Copyright or Patent – How to Protect My Software? | European IP Helpdesk.” [10]Diamon v. Diehr, 450 U.S. 175 (1981)
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