Thursday, 25 February 2016

Glee and grin-and-bear -- but Indian shift on software patents will provide data test-bed

It is now no secret that India is to refuse patent protection to certain software-related inventions. The decision, announced on 19 February, has been met with a predictable mixture of glee and grin-and-bear.  This change is not the result of legislation; rather, it is the result of the issue by the Indian Patent Office of revised Patentability Guidelines for Computer Related Inventions. It does not bar all software patents per se. Before this change, section 4.5.4 of the August 2015 Guidelines read:
If a computer programme is not claimed by ‘in itself’ rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfils all other criterion of patentability, the patent should not be denied.
This version has now been replaced by the following:
The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.
How much of a difference will this make, and to whom? According to the Global Legal Post,
India's Controller General of Patents, Designs and Trade Marks has reaffirmed its position that allowing the patenting of software would hinder innovation and competition in the country's tech industry.
Once such patents are no longer available, economists, software experts and IP analysts will be scrambling over the data in order to ascertain whether and, if so, to what extent, this statement is true.  The casual observer of the Indian software scene will already have noted that it is vast, creative and focused on global as well as national products, services and applications.  Tata Consultancy Services, Infosys, Wipro, HCL Technologies and Tech Mahendra lead the way and many others are in their wake. Have they been so impaired by existing patent-eligibility rules that they will now be unshackled and enabled to compete effectively, or will their activities now be increasingly unprotectable and vulnerable to emulation?

Another point to bear in mind is that innovation and competition in the software sector are not solely the product of the availability of patents, since those rights -- however much they are treasured by their owners and respected by their investors -- operate in the same space as copyright, trade marks and contract law as a means of creating and preserving goodwill and marking out corporate territory into which rivals venture at their own risk.

Now that the US Supreme Court in Alice Corp v CLS Bank and the Indian Patent Office have weakened or dislodged the grip of patent protection on computer-related inventions, while the European Patent Office has not, we have a great test-bed for measuring visible innovation, investment and creativity in three major zones of economic activity.  Patent applications and grants, the entry of new companies and the disappearance of others, as well as the migration of investment funds between businesses, sectors and geographical regions will all come under scrutiny.  But the resultant figures provide analysts, economists and politicians with the knowledge they need if constructive IP policies are to be enacted and enforced?

Further reading on the Indian Guidelines:
  • The Times of India here 
  • Global Legal Post here 
  • The Tech Portal here 
  • Spicy IP here

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