Embedded software patenting unlikely

New Delhi, March 15: To appease the Left, the UPA government is likely to drop software patenting from the Patent Bill 2005. An assurance to this effect has already been given by the government to parliamentarians from Left parties, as a trade-off for allowing enactment of the Bill.

The December Patent Ordinance had allowed patenting of “software embedded with hardware” as also software-hardware combinations. Patenting will, however, be subject to specified novelty conditions. The ordinance did not permit patenting of software, per se.

Information technology (IT) software and services majors including Infosys, Wipro and TCS have been vocal about exploring the embedded solutions and mobile computing space, under the patent regime. Patent regime would help increase India’s software exports - about $15 billion at present - manifold, they contend.

Cyber expert and Supreme Court advocate Pawan Duggal pointed out that in the US, software itself is patentable.

So are business process methods embedded in hardware. “Not allowing software and software embedded with hardware will cut significantly India’s share in the patent pie,” he said.

Fuzzy logics and mathematical algorithms that software are, assume “technical effect” with hardware interaction and should therefore be patentable, according to some industry analysts. While the government shares IT industry’s view, the Left prognosticates that only foreign MNCs like Microsoft and IBM would benefit by software patenting.

The prime minister’s office (PMO) is keen to remove the hurdles in the passage of the Patent Bill, obligated under the TRIPS agreement. Defence minister Pranab Mukherjee is already acting as pointman between the Left and the government to thrash out the thorny issues. The source said scrapping software patenting proviso was one formula that has found favour in the course.

Globally, software patenting is a highly contentious issue, with lobbies working hard in either directions. Those who oppose such patents argue that sole ownership of software would practically scuttle innovation, while patents are in fact meant to reward and promote innovation. It is more or less an accepted notion that software per se must not qualify for patents.

The government, sources said, is also looking at couching the Patent Bill slightly differently from the Ordinance, even as it is firm on retaining its essential character. The plan is to introduce some minor amendments to the Ordinance. “It is unlikely that the the Bill will be referred to a select committee of (Parliament),” said an official source, adding that since protracted parliamentary committee deliberations had gone into the...