[Commons-Law] Financial Express: Embedded software patenting unlikely

[Ram]

>From Financial Express


Embedded software patenting unlikely  
 
K G NARENDRANATH 
 
 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 Ordinance as inputs, a repeat of the
same seemed redundant.

The Left parties are learnt to be in constant dialogue with the
government, asking for modifications of major provisions of the
Ordinance. According to a senior Left leader, the patentability
criteria should be "tightened," and compulsory licensing "broadened"
to make available affordable drugs to the needy. The Left also wants
pre-grant opposition provision retained in the law as it was before
the Ordinance.