The IT majors made their opposition clear at a meeting in Delhi, called by the governments department of industrial policy & promotion on Thursday. The dispute has been sparked by the draft manual that will guide patent examiners in their interpretation of the Indian Patent (Amendment) Act for software. Section 3(K) of the Act clearly says: A mathematical or business method or a computer programme per se or algorithms are not patentable.
But the draft examination manual gives scope for patent examiners to grant patents where none is allowed for software under the law. Even the Federation of Indian Chambers of Commerce & Industry (Ficci), representing the software associations and the law firms, arguing that a strong intellectual property regime in India would give the Indian software industry the impetus to evolve into product-related research & development model.
According to Ficci, patents should be given to any computer software that has a technical effect and character and is able to solve the problem associated with prior art. Infosys, which sent a separate representation, goes even furtherit says even the source code should get a patent.
Pinaki Ghosh, the intellectual property head of Infosys, told FE, We are of the opinion that software systems as well methods should be patented. Companies like Infosys want software patents along the entire software value chain from source code to software embedded in hardware. However, patenting of software is being opposed strongly by Red Hat India, the Linux based open source software company, along with science forums like the All India Peoples Science Network.
Venkatesh Hariharan, who heads Red Hat Indias open source affairs, said the draft patent manual that seeks to introduce patents is not in consonance with the current legal situation. Hariharan pointed out that Section 3(K) of the Patent Act clearly says that a mathematical or business method or computer programmes per se, or algorithms, are not patentable.
He said the Patent Amendment Act 2005 had sought to introduce software patents but this was rejected by Parliament in the final version, and Section 3(k) was retained in its original shape.
On reviewing the draft patent manual, we find that it seeks to make technical applications of software patentablethis approach was explicitly rejected by the Indian Parliament, Hariharan said. Ficci official said there has been some underlying ambiguity regarding the patenting of software with technical effect. The draft manual says that the software will be patented only if it goes into a new hardware. This FICCI is opposing this condition.
According to FICCI, there should not be any linkage of patenting of software having technical affect with the novelty of hardware. The open source community will not have anything to do with software patents in their entirety. Open source software is one of the most dynamic, innovative sectors of the global economy, but the patient system is a costly hindrance to open source, said Hariharan of Red Hat.