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DraftManual_ Knowledge_Commons.html — HTML, 23Kb

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<P LANG="en-GB" CLASS="western" ALIGN=CENTER STYLE="margin-bottom: 0.21cm">
<B>Representation by Knowledge Commons to the</B></P>
<P LANG="en-GB" CLASS="western" ALIGN=CENTER STYLE="margin-bottom: 0.21cm; page-break-after: avoid">
<B>Office of the Controller General of Patents, Designs and Trade
Marks</B></P>
<P LANG="en-GB" CLASS="western" ALIGN=CENTER STYLE="margin-bottom: 0.21cm">
<B>on the</B></P>
<P LANG="en-GB" CLASS="western" ALIGN=CENTER STYLE="margin-bottom: 0.21cm">
<B>Draft Manual of Patent Practice and Procedure - Patent Office,
India (2008)</B></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
<BR><BR>
</P>
<OL>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	This representation addresses the section 4.11 of the Draft Manual,
	which provides the guidelines for defining what is excluded from
	patenting vide section 3(k) of the Patents Act, 2005.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	The Clause 3(k) has defined what is not patentable in quite
	unambiguous terms. It is a well settled principle in law that a rule
	or a guidelines cannot change the substantive meaning of
	legislation. Unfortunately, this is what the Draft Manual proposes
	to do in its interpretation of this clause.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	<FONT COLOR="#000000">Indian Patents Act differs from other Patent
	Laws in so far as it clearly lays down what is not patentable. The
	Clause 3(k) is one such clause. The lawmakers were clear in their
	intention, “A </FONT>mathematical or business method or a computer
	programme per se or algorithms are not patentable”. Therefore,
	through guidelines, what is not patentable under law cannot be made
	patentable through practices and procedures, as the Draft Manual
	proposes to do.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	It might be noted that the Draft Manual is trying to bring in the
	amendment to the Patents Act which was subsequently not accepted in
	the Parliament. The relevant 3(k) amendment was, “a computer
	programme per se other than its technical application to industry or
	a combination with hardware; a mathematical method or a business
	method or algorithms;” By retaining the original wording and not
	accepting the change that software could become patentable by virtue
	of a technical application, the Parliament made its legislative
	intent clear. Therefore, by an interpretation of the act, the Patent
	Office cannot change the legislative intent that with or without
	technical application, software would not be patentable. 
	</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	<FONT COLOR="#000000">In trying to reach this interpretation, the
	Patents Office seems to have copied the relevant sections from the
	“</FONT>Manual of Patent Practice guidance for interpreting the
	Patent Act 1977”, UK. This has been done without any reference
	that would justify such wholesale lifting of interpretation. We
	reproduce below what the Draft Manual says in for example 4.11 and
	what the UK manual says.</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-left: 1.27cm; margin-bottom: 0.21cm">
<I>Indian Draft Manual 4.11.7</I></P>
<P LANG="en-GB" CLASS="western" STYLE="margin-left: 2.54cm; margin-bottom: 0.5cm">
4.11.10 A mathematical method is one which is carried out on numbers
and provides a result in numerical form (the mathematical method or
algorithm therefore being merely an abstract concept prescribing how
to operate on the numbers) and not patentable. However, its
application may well be patentable, for example, in
Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the
invention concerned a mathematical method for manipulating data
representing an image, leading to an enhanced digital image. Claims
to a method of digitally filtering data performed on a conventional
general purpose computer were rejected, since those claims were held
to define an abstract concept not distinguished from a mathematical
method. However, claims to a method of image processing which used
the mathematical method to operate on numbers representing an image
can be allowed. The reasoning was that the image processing performed
was a technical (i.e. non- excluded) process which related to
technical quality of the image and that a claim directed to a
technical process in which the method used does not seek protection
for the mathematical method as such. Therefore the allowable claims
as such went beyond a mathematical method. 
</P>
<P LANG="en-GB" CLASS="western" ALIGN=LEFT STYLE="margin-left: 2.54cm; margin-bottom: 0.5cm">
<BR><BR>
</P>
<P LANG="en-GB" CLASS="western" ALIGN=LEFT STYLE="margin-left: 1.27cm; margin-bottom: 0.5cm">
<I>The UK Patent Manual Clause 1.17</I></P>
<P LANG="en-GB" CLASS="western" STYLE="margin-left: 2.54cm; margin-bottom: 0.5cm">
Similarly, mathematical methods are not patentable but their
application may well be patentable. For example, in
Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the
invention concerned a mathematical method for manipulating data
representing an image, leading to an enhanced digital image. The EPO
Technical Board of Appeal defined a mathematical method as one which
is carried out on numbers and provides a result in numerical form
(the mathematical method or algorithm therefore being merely an
abstract concept prescribing how to operate on the numbers). Thus the
Technical Board of Appeal rejected claims to a method of digitally
filtering data performed on a conventional general purpose computer,
since those claims were held to define an abstract concept not
distinguished from a mathematical method. However, they allowed
claims to a method of image processing which used the mathematical
method to operate on numbers representing an image. The reasoning was
that the image processing performed was a technical (ie non-excluded)
process which related to the technical quality of the image and that
even if the idea underlying an invention may be considered to reside
in a mathematical method, a claim directed to a technical process in
which the method is used does not seek protection for the
mathematical method as such. Therefore the allowable claims went
beyond a mathematical method as such because they specified the
physical entity the data represented and the technical process in
which it was used. 
</P>
<P LANG="en-GB" CLASS="western" ALIGN=LEFT STYLE="margin-left: 1.27cm; margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=6>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	<FONT COLOR="#000000">Not only are the sentences lifted verbatim,
	with only some minor re-arrangements, even the reference to the case
	in the UK Manual, </FONT>Vicom/Computer-related invention [1987] 1
	OJEPO 14 (T208/84), is not listed in the cases given in the Annexure
	List of cases for the Draft Manual. 
	</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	According to the Draft Manual, the allowable claim goes beyond a
	mathematical method as it specifies a physical entity (signals) and
	the technical process (image processing).<FONT COLOR="#000000">
	Simply put, what the patent office is claiming is that while a
	mathematical method cannot be patented, however its application to a
	specific technical field – image processing in the Vicom case –
	is patentable. </FONT>
	</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	The problem with this approach is that while the patent office may
	regard image or signal processing as a technical application, what
	is being patented is still a mathematical method. The mere fact that
	it is a mathematical algorithm applied to a specific application
	with specific physical entities does not change that the content of
	what is being patented, which is still the mathematical algorithm.
	Only the scope of the patent is being narrowed by limiting it to
	image processing.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	If the above is accepted, all that would be required for securing
	software patents for the actual mathematical method is to file
	separate applications for each of the application of the
	mathematical method, in this case the digital filtering algorithm.
	This is merely changing the form of the patent application and not
	its substance. We find such an interpretation completely contrary to
	the patent law that has been framed in this country.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	The Image Processing case is particularly important, as if it is
	accepted, all compression techniques would also be patentable on
	similar grounds. Already, the practices of USPTO and EPO have lead
	to a situation that a number of standard formats such as JPEG and
	GIF have come under patent threats. Since any company that uses
	digital pictures – cameras, images on the web, etc., can be sued
	for infringing such patents, the potential economic consequence of
	such patents is enormous. This is why software patents under any
	garb, are particularly pernicious.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	One of the earliest software patents was that of the LMZ
	compression, which was used in the GIF format. It is now widely
	accepted in the software industry that such patents are in fact
	patents of mathematical algorithms. It was because the GIF format
	came under a patent threat that other formats became popular.
	However, similar threats now exist for other formats for image
	processing. In most such cases, the software industry has had to
	file review applications in USPTO to invalidate such patents. We see
	no reason why we should follow this tortuous path, when we have a
	clear law on this on our statuette books disallowing software
	patents.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">The language of Section 3 k) of
	the The Patents Act, 1970 makes it clear that unlike certain
	countries, where the Patents Offices have been issuing patents for
	mathematical or business methods and for software, the Indian
	Parliament has considered software per se not to be patentable.</FONT></P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=13>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">The clause that software per se
	is not patentable would mean that only software as a part of a
	larger invention of which it is a part could be considered for a
	patent as a whole provided it meets the criteria of patents given in
	the Act. This makes clear software “standing alone” is not
	patentable under Indian law. It is pertinent that as software cannot
	execute on its own without any hardware, this means that software
	running on general-purpose data processing machines (computers) do
	not qualify for patents. The mere addition of conventional data
	processing equipment to a software application does not turn that
	application into an invention. Only if the software application is a
	part of a larger system and the system as a whole is eligible for a
	patent, can the invention be patented as a whole. This is the intent
	of the Act and therefore we are sure that the Patent office would
	take this into cognizance when deciding on patent claims. </FONT>
	</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=14>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">If we take this clause of
	software per se not being patentable with the other part of the
	clause the intent of the Law becomes even clearer. It is clear from
	3 k) above, that any mathematical method or a business method or a
	mathematical algorithm cannot be patented, irrespective of whether
	it is embodied in software or not. The non-patentablity of business
	or mathematical method or algorithm is even broader than the
	non-patentability of software per se and covers all software
	applications/computer programs.</FONT></P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=15>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">All software or computer
	programs are nothing but a sequence of instructions that convert a
	set of inputs to a set of outputs. This is the definition of an
	algorithm.</FONT></P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=16>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">As per 3 k), a mathematical
	method is not patentable and as computational methods are a sub-set
	of a mathematical methods, a computational method is not patentable
	either.</FONT></P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=17>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">Computer programs essentially
	convert an algorithm, business or a mathematical method into a
	sequence of machine executable steps. All computer programs are
	therefore algorithms/mathematical or business methods implemented
	for execution on a computer. As algorithms, mathematical or business
	methods are not patentable under Indian law, no software or computer
	program, which can run on general-purpose machines, can be
	considered patenatable. The only exception, which can be read into
	the Patents Act “computer program per se”, is that computer
	programs in conjunction with special purpose hardware or equipment,
	can be considered for patenting as a whole, provided it meets all
	other criteria of patentability given in the Act. </FONT>
	</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=18>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">Courts in all parts of the world
	have held that subject matter which would have the practical effect
	of preempting laws of nature, abstract ideas or mathematical
	algorithms is ineligible for patent protection. This age-old and
	time-tested precedent effectively establishes the ineligibility for
	patent protection to laws of nature, abstract ideas and mathematical
	algorithms. If these could be patented, then in effect one would be
	patenting the tools of scientific enquiry itself, something no
	patent law allows, as it would lead to halting scientific progress.</FONT></P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=19>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">Courts have also held that
	regarding patentable subject that the inquiry into whether subject
	matter is eligible for patenting is one of substance, not form. This
	requires that one look, not simply at the language of the patent
	claim to see if it recites a structure of multiple steps or
	components, but also at the practical effect of the claim to see if
	it in fact covers -- or otherwise would restrict the public’s
	access to -- a principle, law of nature, abstract idea, mathematical
	formula, mental process, algorithm or other abstract intellectual
	concept. Otherwise, it would make the determination of patentable
	subject matter depend simply on the draftsman’s art and would ill
	serve the principles underlying the prohibition against patents for
	'ideas' or phenomena of nature. By skilled patent drafting, one
	should not be able to start patenting essentially abstract ideas,
	mental processes and newly discovered laws of nature or mathematical
	algorithms. </FONT>
	</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=20>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
	<FONT FACE="Times New Roman, serif">We are aware that though the Law
	generally holds that such matters are not patentable, a number of
	patent offices, particularly the US PTO and the EPO have been
	granting patents recently for software also. This has already
	created a situation which Tim Berners-Lee, one of the founders of
	the World Wide Web, director of the World Wide Web Consortium that
	sets global standards for the Internet, calls as the biggest threat
	to software development. </FONT>
	</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-left: 2.54cm; margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">All companies developing emerging
technology are threatened by the prospect of patent licensing
royalties. You could never find out what patent could possibly apply
to what technology. You could never guess what things people might
have the gall to say they have patented already. It really is a
universal fear. (Tim Berners-Lee at Emerging Technologies Conference
at the Massachusetts Institute of Technology, September 29, 2004.)</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-left: 2.54cm; margin-bottom: 0.5cm">
<BR><BR>
</P>
<OL START=21>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	Major software companies such as Cisco, Oracle, Adobe and even
	Microsoft earlier have come out against software patents. They have
	held that copyright provides an appropriate level of protection and
	patenting software is harmful to the software and other industries. 
	</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	It has also been the basis on which the Small and Medium-sized
	Business Community in the EU objected to the formalisation of EPO
	practice and acceptance of software patents. The same argument would
	apply to Indian software industry as well.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	The above clearly shows that no application of mind has taken place
	in either understanding of the Indian Patents Act or its intentions.
	While the EPO or the UK practices could be used by the Patent Office
	to justify what it seeks to do, it cannot do so without first
	identifying the Patents Act and practices in these countries and the
	Patents Act and practices in India.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	In India, it has been considered patents should be granted only when
	public good demands granting of such state protected monopolies.
	This was the practice also in the UK and the US. It is still the
	basis of the practice in most countries. It is only in the last few
	decades that the US, followed by the UK, Japan and now the European
	Patent Office has tried to change the interpretation of their
	Patents Acts to expand the scope of patentability. This attempt to
	enlarge the scope is from their national interest as they hold the
	largest number of patents. Therefore, their belief that
	strengthening the patent regime internationally will help their
	companies to build world-wide monopolies.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	It is not in India’s national interest or in the interests of its
	people to expand the scope of state protected monopolies through
	expanding the patent scope. India’s national interest is best
	served by restricting the scope of such monopolies. Therefore, the
	patent regime in India should work on the presumption that patents
	are to be given only when there is a decisive case for patents. This
	has been the basis of the Indian Patents Act and is in tune with
	fundamentals of such legislation world over. It is only the
	deviation in patent interpretation that has produced a scenario
	where business methods, software and also mathematical methods are
	also being patented.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	The US Supreme Court has now been correcting some of the excesses
	that has occurred in the US patents interpretation by the Federal
	Bench. We see no reason why India should change it understanding of
	patentability following in the footsteps of the US and the EPO and
	subsequently need to correct such excesses.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	We will not recapitulate the case against software patents. We
	consider that case is now accepted in Indian law and the Indian
	Patents Act explicitly prohibits software patenting. We are only
	concerned here with the attempt to defeat the non-patentability of
	software patents by an interpretation that runs counter to the
	Indian law.</P>
	<LI><P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
	We therefore would suggest that the relevant sections of the Draft
	Manual – namely the section 4.11 should be redrafted keeping the
	legislative intent in mind. Otherwise, it will constitute a breach
	of privilege of the Parliament.</P>
</OL>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">Prabir Purkayastha, Knowledge
Commons</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">Sd.-</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">SP Shukla, National Working Group
on Patent Law</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">Sd.-</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">G. Nagarjuna, Free Software
Foundation of India</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">Sd.- </FONT>
</P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<FONT FACE="Times New Roman, serif">Amit Sengupta, All India Peoples
Science Network</FONT></P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.5cm">
<BR><BR>
</P>
<P LANG="en-GB" CLASS="western" ALIGN=JUSTIFY STYLE="margin-bottom: 0.21cm">
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