The issue of innovation is one that is constantly being talked about by our government and indeed the private sector. Indeed Prime Minister Modi has been quoted as saying that innovation is the key driver of growth. One of the issues at the core of the debate about how to best ensure innovation is regarding access to knowledge and the role played by intellectual property regimes in restricting access to information. In late August, 2015, the Indian Patent Office released a new set of guidelines on the examination of computer related inventions. These, guidelines have the effect of enlarging the scope of patents for software, mathematical models and business methods – thereby restricting the scope of innovation for programmers.
Newsclick interviews Venkatesh Hariharan, Outreach lead for the Open Invention Network and a member of the Ispirits expert group on software patents, to discuss the issue of software patenting, the effects this can have on society, as well as the specific guidelines issues by the IPO.
Rishab Bailey (RB): Hello and welcome to Newsclick. Now, a couple of weeks ago the Indian patent office released a new set of guidelines on the examination of the computer related inventions. These guidelines have the effect on enlarging the scope of patent software thereby restricting the scope of innovation for programmers. To discuss the issue of software patenting and the effects this can have on our society, as well as very specific guidelines issued by the IPO, we are joined by Venkatesh Hariharan, an outreach need for an open innovation network and a member of ispirit network group on software patents. Hi Venky and welcome to Newsclick. Now, the Indian parliament has chosen specifically to exclude software from the scope of patentability. Why should software be treated differently to other products which normally get far greater IP protection.
Venkatesh Harihaharan (VH): The reason is that software is a applied form of Mathematics and if you look at software, it is already protected by copyrights. So typically most inventions are not protected by copyrights. So here you have a case where software is protected by trade secrets, it's protected by copyrights and also in some jurisdictions with software patents. So the challenge with software patents is that in practical terms it does not work. The reason is that software patents and patents are basically supposed to be a form of intellectual property but a property does not really work if you can not really set the boundaries of this particular property. If I do a title search for land, I can say that East, West, North, South, these are the others properties that are adjacent to other properties. But in case of software, it is a very abstract phenomenon. You know it is basically an applied form of logic. So if you do not patent Mathematics, if you do not patent logic, how can you patent software? And there are also practical implications of this because it is very difficult for a software developer to figure out what part of logic has been patented. Today, if I have to sit down and do a e-commerce website and launch it in the US, in US there are some close to 15 – 16 thousand patents on online shopping, e-commerce. So there is absolutely no way that a software developer will be able to figure out which are these fifteen thousand patents am I violating.
RB: You have laid out some of the reasons why we should not consider patenting software. But there is big MNC lobby which is pushing for enhance protection on patents on software. Are there any valid reason on your mind why India should consider enhancing IP protection for software. Are there any force behind these arguments that we see from MNC companies?
VH: So I would say that whenever these arguments are made I think we have to be very careful that how we bring that into our jurisdiction. So for example, you know if you look at into the ecological footprint of an American it says that it takes almost 40 acres of land to sustain the lifestyle of one average American. Now, if you import that kind of a principle or philosophy wholesale into India, we will have to start colonizing the Indian ocean. So you know, whenever people from other jurisdictions come and say that you know this is what is best for India, we have to apply our own yardsticks and say that will it really be of a benefit to our context. So we have to look at the fact that we are a heavily services based software economy. We also have to look at the fact that in the recent past we have seen emergence of a very vibrant product ecosystem. Then we also have to look at what is happening around the world. There are studies which now show that because of software patents and because of the ways in which software patent trolls and patent owning entities are asserting software patents. The amount of venture capital funding has actually gone down. There are studies which show that the litigation around software patents and business method patents is actually the highest among all kinds of litigation and which is because of the reason which I have mentioned earlier that you know software is very difficult to identify boundaries in software.
RB: Right, but one of the arguments posed against is that if the patent offices at least scrutinized applications properly and only granted patents for the things which are clearly within the scope of patentable subject matter, you would not face this problems with patent trolls and so on and so forth. Do you buy that argument?
VH: You know, the question is first of all is whether software itself is patentable subject matter or not. That is the fundamental right. Everything else follows from that and I think clearly to my mind software is not patentable subject matter because you write software it is an applied form of logic so it should not be patented. Here is the challenge, if I am a software developer, it is very difficult for me to figure out what kind of software is patented and the thing is if I ..copyright treats software in a very different way. So let's say if you write some code and I write some code. We write something very similar. You and I may write poetry or you and I may write code. It might be similar but we have arrived at it independently. So in copyright you can say I have arrived at it independently therefore, it is mine even though it sound very similar to yours. But with patents the problem is that you know you own the patent and even if I have arrived at it without reading or without willfully copying you then still I am liable for infringement.
RB: So do you think that the stance you are taking regarding the patentability of software per se, is this the attitude generally prevalent in industry both in India and the countries abroad such as US?
VH: So the open source community has been and the free software communities have been very vocal in their opposition of software patents because as far as the open source community goes and free software community goes. Our whole idea and our whole dream is that we want to create software and add to the knowledge commons. So we think of software as a public good. So when we write software you know our dreams is you know millions and millions should be able to use it without any hindrance or you know barrier to access. Whereas you know software patents monopolize and add control to these particular ideas. So amazon owns one click shopping etc. so I think open source philosophy is you know it gives power to the users whereas the principle of software patent is that it concentrates a state granted monopoly into the hands of a corporation or an individual. So I think these are two fairly antithetical view points. So the open source communities worldwide is again software patents. The New Zealand software industry almost 94% of them voted against software patents. They put pressure on the New zealand parliament to ensure that software patents are not allowed in New Zealand. And similarly there are other countries. Europe, has a middle of a road kind of approach. So US is actually a particularly a bad example to give because there are historical reasons why you know the US software patent office started granting software patents. I think there are many people who are vocal about their criticism of the US patent office.
RB: This is actually something which briefly you have touched upon it talks about how software patents creates monopolies in the hands of certain big companies which can really afford to file for patents and so on. Now, given the sort of abysmal record we Indians have for filing patents for actually proceeding with this entire system. Are there any strategic and broader economic implications also for allowing software patents in India. What does it mean for our economy for our strategic considerations?
VH: If you look at the IT industry in India I think it has clearly been the industry that has been reshaped the Indian, perception of the India global eyes. You have this IIT graduates like Sundar Pichai at google and at Microsoft etc. Nadella and others. So the thing is that you know here is the challenge today in India the patent office most of the patents, almost 95% of the patents that have been filed have been filed by the MNCs. So if you look at the balance of power when it comes to software patents, they are the ones who you know been patenting software for years and years and years. When they come in and file patents you know things as trivial as booting of computers from USB stick which you know any Btech student can pretty much write. Or you know things like how do you kind of.. like the interrelationship of cells in a spreadsheet. So when you have patents on those kinds of fundamental things what will happen is that as far as software innovation goes in India, there will be more of litigation and less of innovation because as a software developer, what I will have to do is that if I am writing say some spreadsheet kind of a programe on the cloud, I will have to start in, go on and look who has patents on spreadsheet. That discovery process is going to be time consuming proess.
RB: And of course, as you pointed out the scope of that patent might also not very clear.
VH: So the challenge with software patents is that you know even if I get legal opinion it is only a advice or suggestion or it's not a conclusive
RB: There is no surety about your business.
RB: Now, the law as it currently stands in section 3k of the patent act permits software patents only when combined with a hardware component and assuming this device or innovation taken a whole needs a standard test of patentability that is novel industrial application so on and so forth. So how does this new set of guidelines issued by the patent office actually changed this interpretation of the law. You previously have bee quoted as saying that this change that has been made in the guideline is essentially and expansion of software patents through the back door. Why do you say this?
VH: So we were involved with the amendments and we were involved with talking to people in parliament and clearly when the amendment was passed,
RB: You are referring to 2005..
VH: 2005 Yeah. The patent amendments 2005. So clear intent there was that the technical effects of the software should be outside the purview of patentability. So if you look at the section 3 of the patent act, it basically deals with the subjects that are outside the purview of patentability and section 3K deals with the software and it says you know Mathematical methods, software algorithms per se are not patentable. So this per se has become a bone of contention and you know a root for creative interpretation of the law. So if you look at the intent of the parliament it was very clear technical effects of software, software in itself should not be patentable subject matter. But if you look at computer related inventions, guidelines that brings in technical effects of software being patentable. So what will happen is that the patent examiners in Indian patent office will use the guidelines and then approve software patents and then that will lead to a flood of software patents in India and this could also lead to a lot of uncertainty because it is clear that at some point of time if software patents are granted, it will be taken to courts and courts will have to then.... obviously what the courts will do is what was the will of the parliament and what was the intent of the parliament and do the guidelines accurately represent the intent of the parliament.
RB: Yeah absolutely. So what scope is there for the guidelines to be changed because I understand patent office did have a consultative process whether the comments received by the public was actually considered not as a separate matter. But given that these guidelines do not constitute statute, they are not rules, hese are just an executive decision made by the patent office. So how do you see things changing or what plans do you and the free software community in India have to put pressure on the Indian patent office.
VH: So there are two interpretations. One is that this is something that has emerged because of lack of understanding of what is the software patent and the understanding of the rules itself. That could be the case because you know in India, we do not really have long history of examining patents around software. So it could be a misinterpretation which is the best case scenario. The worst case scenario is that this has been motivated by the MNCs and the political lobbies which have been pushing for software patenting in India and of course, you know there are lot of lawyers... so whenever there have been these consultations we have found that a lots of lawyers coming and say this will help in innovation. Obviously the thing is that for them it is wonderful because something that is so ambiguous as a software patents is a fertile ground for a litigation. It is said almost 37 percent of all litigation around patents in the US is because of software patent and business method patents. If I was a lawyer, I would be salivating it because the possibility of patent litigation because there is just no way that you can figure out what this particular patent means. I mean anybody who has seen a software patent and read it and understand it, I think that guy is a genius or an idiot. So basically, I have seen that most of the round table discussions in the consultations have been dominated by the lawyers and frankly every time a lawyer uses the word innovation, I mentally cut and paste and replace it with the word litigation.
RB: Well, I think it is a good note to end todays interview. Thank you Venky for joining us. This is an issue we will continue to follow as we see what is happening with Indian Patent Office. Thank you for joining us on Newsclick. Do join us again.
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