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Software Patentability: US,EU & India Perspective.PRESENTED BY: ISHAN GUPTA (11IP60027)RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW
What is the need of software patents? Most prominent type of Intangible Instrument. Performs different complicated task in the business.
Why copyright or Database Right isGood Enough ?? Copyright protects code from copying and public dissemination.However, the protection offered is for the particular arrangement of data,not for the ideas represented by that data. Database right protects databases whether created by software orcreated by human beings, for example, data tables which might be usedby a computer program to do its job. However, this offers only limitedprotection to the constituent parts of the program itself. Patents, however, protect the concepts and methods associated with the"Industrial Application" of computer programs.
Problem with the software patent… In United States Software’s are patentable In India like the European union does not allow patents for inventionsrelated to software.
US Perspective USPTO is granting a SW patent since early 1970’s. Section 101 of title 35, United States Code, provides:Whoever invents or discovers any new and useful process, machine,manufacture, or composition of matter, or any new and useful improvementthereof, may obtain a patent therefor, subject to the conditions andrequirements of this title
patent-eligibility trilogy In this Gottschalk v. Benson (1972)United States Supreme Court ruled that apatent for a process should not be allowed if it would "wholly pre-empt themathematical formula and in practical effect would be a patent on thealgorithm itself", adding that "it is said that the decision precludes a patentfor any program servicing a computer. We do not so hold.“ In the parker v. flook the invention in this case was a method of calculatingalarm limits by using a "smoothing algorithm" to make the systemresponsive to trends but not momentary fluctuations in process variables(such as temperature). Because it was conceded that the implementationof the algorithm was conventional, the Court found that the inventor didnot even purport to have invented anything on which a patent could begranted.
Machine or transformation test In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 (Fed. Cir. 2008), was anen banc decision of the United States CAFC on the patenting ofmethod claims, particularly business methods. The Federal Circuitcourt affirmed the rejection of the patent claims involving amethod of hedging risks in commodities trading. The court alsoreiterated the machine-or-transformation test as the applicabletest for patent-eligible subject matter, and stated that the test inState Street Bank v. Signature Financial Group should no longer berelied upon.
In the 1981 case of Diamond v. Diehr, the United States Supreme Courtupheld the CCPAs reversal of the USPTO, and ordered the grant of apatent on an invention, a substantial part of which involved use of acomputer program which used a well-known formula (the ArrheniusEquation) for calculating the time when rubber was cured and the moldcould therefore be opened. The Supreme Court stated that in this case,the invention was not merely a mathematical algorithm, but a process formolding rubber, which was therefore patentable.
Problem with software Patents(EU Scenario) Art. 52(2) of EPC(a) discoveries, scientific theories and mathematicalmethods;(b) aesthetic creations;(c) schemes, rules and methods for performing mentalacts, playing games or doing business, and programsfor computers;(d) presentations of information.
Art.52(3) of EPC The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to whicha European patent application or European patent relates to suchsubject-matter or activities as such. The European Union Directive on the patentability of computerimplemented inventions , (2002)
Current Position Since 1987, the Boards of Appeal of the EPO hassteadily developed a broader interpretation of Article52. Accordingly, the number of software basedinventions routinely has been granted patent by theEPO to the present time. Software-based patent applications have the highestgrowth rate in all patent categories presented to theEuropean Patent Office over the past few years.
RequirementsAccording to Art. 52(1) of EPC The invention must be new The invention must involve an inventive step The invention must be capable of industrial applicationAdditional Requirement for SW Patent They must have technical character and solve a technical problem; They must involve an inventive technical contribution to the prior art.
EU Case Laws The Vicom Case (1984)A patent application was made to a method of digitally processing images whichmade use of a mathematical method incorporated in a computer program runon an appropriate computer to do the said processing. It was the first case thatmade a distinction between subject matter providing an effect that is abstract(not patentable) and those with an effect that is technical (potentiallypatentable). KOCH&STERZEL/ X-Ray ApparatusIn this case patent was granted to a X-ray device controlled by a computerprogram so as to secure optimal exposure without overloading the X-ray tube.Board decided that EPC does not forbid patenting inventions which consist of amix of technical and non-technical features.
Indian Perspective On January 1, 2005, the new Patents Amendment Ordinance, 2004 whichamends the Patents Act, 1970 has been promulgated to comply withIndias commitment under Agreement on TRIPS. Patent Act prohibited patenting of computer software perse, theOrdinance qualifies this by stating that “a computer programme per se” isnot patentable “other than its technical application to industry or acombination with hardware (Sec 3(k) of Indian Patent Act) Therefore, a computer programme which can possess a technicalapplication to the industry or a computer programme combined withhardware would be capable of being granted a patent under the currentIndian laws.