undeserving software patent

INTRODUCTION

The concept of "intellectual property" in India in recent years has taken on some epic proportions for a number of reasons. One of the main reasons of the increasing awareness of the urban Indian population, is of importance and, more importantly, the economic benefits for the protection of their intellectual property rights both within and outside India. And according to traditional principles of intellectual property protection, patent law is to promote scientific research, new technology and industrial progress. The basic principle of patent law is that the patent for an invention that is new and useful to this invention must have novelty and usefulness. The granting of the patent will be of industrial property and intellectual property as well. And the computer software is a relatively new recipient of patent protection.

The term "Patent''hat originates from the term" Patent Letter''. This expression "Letter Patent" meant open letter and the instruments under the Great Seal of the King of England by the crown for all subjects in which the vast crown certain rights and privileges to one or more persons in the Kingdom. It was in the later part of the 19th century, new inventions in the field of art, process, procedure or method of production, machinery and other materials, by manufacturers were on increased and the inventors were very interested that the inventions of them should not be violated by another by dragging them through the adoption or the methods to them. To the interests of the inventor, the then British rulers, the Indian Patents and Design Act, 1911.

With regard to the patentability of software inventions, it is currently one of the hottest areas of debate. Software is patentable in recent years in most countries (albeit with restrictions in some countries, especially the signatories of the European Patent Convention or EPC) and the number of software patents has risen rapidly.

MEANING of software patenting

The term "software", "do not have a precise definition and also the software industry is not confined to a specific definition. But it is basically all used to describe the various types of computer programs. Computer programs are basically in" Programs "and" operating programs ". Programs are designed for specific tasks to be executed on the computer and the operating system, programs for managing the internal functions of the computer to facilitate the use of the application.

Although the term "software patent" no universally accepted definition. A definition of the Foundation for a Free Information Infrastructure is that a software patent is a patent on any performance of a computer implemented with the help of a computer program. "

According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, "" Software patents are patents, based on software ideas, ideas that you use in the development of software.

This is software patents relate to patents, which could be granted on products or processes (including methods), the one-or software can also be a significant or at least necessary part of their implementation, ie the form in which they appear in the implemented (or used) to the effect that has to offer.

Early example of a software patent:

On 21 September 1962, a British patent application entitled "A computer for automated processing solution of Linear Programming Problems" was. The invention was efficient storage management for the simplex algorithm, and can be purely software means. The patent was issued on 17 August 1966 and appears as one of the first software patents.

Conceptual difference between copyright and patent

Software has always been protected by copyright, because code fits easily in the description of a literary work. Thus, software is protected as literary works under the Berne Convention, and any software that is automatically protected by copyright. This allows the creator to prevent the copying of another company the program, and it is usually not necessary to register code, order for them to be copyrighted. While the software patenting has recently (albeit only in the U.S., Japan and Europe), where patents give their owners the right to prevent others with a claimed invention, even if they developed independently of each other, and there were no copies at.

In addition, it should be noted that patents for the underlying methodologies used in a particular software. On the other copyright prevents the direct copying of software, but does not prevent other authors to write their own incarnations of the underlying methods.
The questions in connection with the transfer of patent rights in the software, however, are much more complex than taking out copyrights on them. Specifically, there are two challenges that one in dealing with software patents. The first is through the instrument of patent itself and the way that the protection it is suitable for the software industry. The second is the type of software, and whether it should be patented.

However, questions relating to the transfer of patent rights in software are much more complex than the inclusion of copyright on them. Specifically, there are two challenges that one in dealing with software patents. The first is through the instrument of patent itself and the way that the protection it is suitable for the software industry. The second is the kind of software and whether it should be patented.

a) Various topics

Copyright protection extends to all original works (among them, computer programs), dramatic, musical and artistic works, including films. The copyright is only on the specific expression of an idea, which was adopted and not the idea itself. (For example, a program that figures in two different languages would be regarded as two different expressions for an idea) are effective, independent rendering of a copyrighted work by a third party do not infringe the copyright.

In general, patents, all "new" and "useful" art, process, procedure or method of production, machinery, appliances and other goods or materials obtained by the production. Worldwide, the attitude towards the patentability of software is skeptical.

b) Who can the right to the patent / copyright?

Generally, the author of a literary, artistic, musical or dramatic work is automatically the owner of the copyrights.

The patent, on the other side is granted the first to be for them, regardless of who the first, it was invented. Patents cost a lot of money. They cost even more paying the lawyers to run the application as it cost to actually apply. It usually takes several years for the application to the view, even when patent offices have a very sloppy work to draw.

c) Right

Copyright gives the holder the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are the rights of "fair use" to the public. Under "fair use", certain uses of copyrighted material is not hurt, such as use for academic purposes of news reporting, etc. Further, independent recreation of a copyrighted work does not as a violation. Thus, if the same piece of code were independently by two different companies, neither would have a claim against the other.
A patent grants the holder an absolute monopoly, which the right to prevent others using, offering for sale, without his consent. In general, patent protection is a far stronger method of protection than copyright, that protection extends to the level of the idea embodied by a software and ancillary services injuncts an invention can be used. It would be the copyright in the software that is the basis for all European software development as independent creations protected by copyright would be attackable by patents. Many patent applications for very small and specific algorithms or techniques that are used in a variety of programs. Frequently the "inventions" in a patent application have been independently formulated and are already in use by other programmers at registration.

d) Duration of protection

The TRIPS Agreement mandates a minimum period of 20 years for a product patent and 15 years in the case of a process patent.

For copyright, the agreement, a period of at least the lifetime of the author and seventy years.

LAWS of software patenting

Substantive law regarding the patentability of software and computer-implemented inventions, jurisprudence and the interpretation of statutory provisions, the various countries with different legal systems.

Software patents in the context of multilateral treaties:

• Software patents under TRIPs Agreement

• Software patents under the European Patent Convention

• Computer programs and the Patent Cooperation Treaty

The patenting of software in the framework of the TRIPS Agreement

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), particularly Article 27, are the subject of the debate on the international legal framework for the patentability of software, and whether software and computer-implemented inventions should be used as a field of technology.

Under article. 27 of the TRIPS Agreement, patents for inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are industrially applicable. (...) Patents be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. ""

However, there are no procedures for resolving disputes in relation to software patents. Its relevance to the patentability of computer-implemented business methods and software of information technology remains uncertain, since the TRIPS Agreement is for the interpretation.

Software patents under the European Patent Convention

Within the European Union Member States, the EPA and other national patent offices have many patents for inventions, software, since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC "" programs for computers "from patentability (Art. 52 (2)), where the patent application relates to a computer program" as such "(Art. 52 (3)). This was to be understood that an invention which is a non-obvious "technical contribution" or solves a "technical problem" in a non-obvious way is patentable even if a computer program is used in the invention.

Computer-implemented inventions, which only solve a business problem with a computer, rather than a technical problem, are not patentable because they do not involve an inventive step. Nevertheless, the fact that an invention is useful in the economy does not mean it is not patentable if it also solves a technical problem.

Computer programs and the Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international Patent Law Treaty, which establishes a common procedure for the filing of patent applications to protect inventions. A patent application under the PCT is an international application or PCT application. After PCT, the international search and preliminary examination by the International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA).

Latest Trend

But before we start dates the emergence of a new era and is the patenting of software in India, it would also be worth a pause and the realities of software patenting. We can do this by using examples of countries where the patenting of software is already on the agenda, as in the U.S. and Japan.

United States

The United States Patent and Trademark Office (USPTO) has traditionally not considered software to be patentable, because patents statutes may only be granted, "" processes, machines, articles of manufacture and composition of matter. "This implies, in particular, patents can not be granted to "scientific truths" or "mathematical expressions" of them. The USPTO will receive the item, the software was in fact a mathematical algorithm, and therefore not patentable, in the 1980s. This position of the USPTO has been a landmark 1981 Supreme Court case Diamond v. Diehr. The case involved a device that is computer software used to set the right timing for the heating, or curing, rubber. Although the software was an integral part of the product, it also had other functions in connection with the real world manipulation. The court ruled then that a device to mold rubber, it was a patentable object. The court essentially found that while algorithms themselves can not be patented, devices that could be used.

But in 1982 the U.S. Congress passed a new court, the Federal Republic of Circuit to hear patent cases. The court allowed the patentability of software, be treated uniformly throughout the United States. Because of a few landmark cases in this court, by the early 1990s the patentability of software was well established.

In addition, several successful processes show that software patents are enforceable in the United States. That is the reason, the patenting of software is widespread in the United States. In 2004, around 145,000 patents were granted in the 22 classes of patents for computer implemented inventions.

Japan

Software is patentable in Japan. In several lawsuits in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita has a court order blocking Justsystem against Matsuhita of Japanese patent 2803236 with word processing software.

Indian Position

In relation to computer software, in the Patents (Amendment) Act, 2002, the amount of non-patentable subject matter in the law was amended to include the following: "a mathematical method or business method or a computer program by se or algorithms ".

However, the recent amendment changes (Regulation, 2004), amending the Patents Act, 1970, was announced after receiving the assent of the President of India and has entered into force on 1 Jan., 2005. Besides changes in the pharmaceutical and agro chemistry, one of the fundamental changes to this regulation is to bring to the patenting of embedded software.
Therefore, the change means that while a mathematical method or a business trip or an algorithm can not be patented, a computer program, a technical application in industry or in the hardware can be patented. Since any commercial software has some industry application and all applications can be considered as technical applications, it opens of course all software patenting.

In any case, all companies, to file a patent application for the software under the Regulation should ensure that their invention in the first place, followed by the three basic tests:

• inventiveness

• Novelty

• Benefits

Therefore, it is important that the software tries to protect is not only a new version or an improvement on an existing code.

Further, in accordance with the specific requirements of the Regulation with respect to the patentability of software, the software should be a technical application to industry or the internal or "embedded" in hardware. This is to prevent against any future litigation or claims of violations of those with a different probability even after a patent has been granted.

CONCLUSION

India for its part, seems to have, the more conservative approach of the European standards for the patenting of software. But the regulation has definitely use and importance in today's India, particularly for our growing domestic semi-conductor industry. This, along with judicial tempering is definitely a wise use of patent protection and the industry to grow through innovations and inventions, thus, mitigating the risks of trivial patents chocking the life of real innovations and inventions. That is the reason a patent should always be treated as a "double-edged sword", to be wielded with caution and sensitivity.

Now, whether this in reality is implemented on a rigid, or is wide through the application (as in the U.S.) and, more importantly, whether the regulation would in fact lead to more innovations and inventions in the software industry remains to be seen.