TL;DR - Industry is desperate to have some form of patenting software. They are making their moves, we have to start preparing ours. Read on for a broader understanding.
Story so far
1970: The Patents Act was enacted in India. This allowed people to claim a ‘patent’ on things that they invented. This means that for 20 years no one else can use or even create by themselves the same thing that was patented, unless there is a license from the patent holder, usually in exchange for money (royalties) or other benefits.
2002: The Patents Amendment Act 2002 introduced the exception [Section 3(k)] that software cannot be patented, based on a Joint Parliamentary Committee report of 2001. The term ‘computer programme per se’ originates here. From this point onwards, it wouldn’t be possible for someone to come up with a new business idea by writing a software and prevent others from doing the same.
2004: [The Patents Amendment Ordinance 2003] was announced (outside the parliament) which added an exception to the above exception (exception-ception). It said if the software has industrial application or if its in combination with a hardware, then it can be patented.
2005: The Patents Amendment Act 2005 made the above ordinance invalid (actually, more like
git revert) and restored the earlier position. The primary concern was that by allowing software to be patented, MNCs operating in India will gain monopoly of software business and harm the Indian industry and citizens.
Ten years of peace and watchful defense…
- 2015, August: Indian Patent Office released a set of guidelines for Computer Related Inventions (CRI, new term for Software Patents) which basically created a way for software also to be considered by patentability. It also tried to allow certain mathematical methods in software (e.g cryptography) also to be patented.
- 2015, September: A joint letter to the Prime Minister’s Office by many Civil Society Organizations, Free Software Movement, academicians and startups, led by SFLC.in, was submitted. In a weeks time, a letter was sent to the Patent Office by DIPP, asking to re-examine the guidelines.
- 2015, October: Consultations were held about the guidelines to hear more views from concerned parties. The issues were highlighted and the threat to Indian software companies and startups was pointed out. SFLC.in had done a study of whatever software patents were issued until then which showed that about 97% of patents were given to foreign companies and thus fails the purpose of incentivizing Indian innovation.
- 2015, December: The government shelves the CRI Guidelines of 2015 owing to the strong opposition from various corners.
- 2016, February: A new set of CRI guidelines were published which was in line with the spirit of ‘No Software (per se) Patents in India’ position. It allowed for software to be patented only in conjunction with a novel hardware. A process was also adopted to ascertain the patentability of such applications too.
There is immense pressure from the Industry through powerful lobbies like FICCI, ASSOCHAM, NASSCOM and others to allow patenting of software in a less restrictive manner than now. There has been pressure on India from outside also on this issue, e.g., during India’s participation in Regional Comprehensive Economic Partnership (RCEP), which has software-patent-friendly clauses in it.
More recently, on April 30, a report has been submitted to the Prime Minister regarding the position on Software Patents by an inter-departmental committee on this issue, which is believed to be pro-industry. In a meeting held last week by the same committee, there were indications of attempts to change India’s position on software patents by removing the restriction that patentable software has to be linked to a newly invented hardware. This way, any existing hardware can be linked up to simple software solutions and a patent can be claimed on such combinations.
Of course, there is also pressure from lawyers skilled in Intellectual Property Law with an eye on the lucrative legal business of patent filing and litigations.
In the coming days, we have to be prepared to conduct a campaign to expose the myth that software is patentable, and also that such patents can only provide for profits and not innovation.
Here’s a good article by Eben Moglen that was recently published in The Indian Express about Indian Industry’s role in the ongoing battle.
Patenting software makes no more sense than patenting mathematics, which is why the Patent Act section 3(k) says what it does. Patenting software is no more a part of the Digital India future than is patenting arithmetic. The government will wisely pay no heed to the blandishments of the incumbents.