The patent application was rejected by the Patent and Trademark Office Board of Appeals rejecting the claim for curing synthetic The Court of Customs and Patent Appeals reversed the order. The subject process constituted patentable subject matter that in several of its steps it included use of a mathematical formula and a programmed digital computer, as process involved transformation of uncured synthetic rubber into a different state or thing and solved an industry problem of “undercure” and “overcure”. The claim satisfies one of the tests to prove non-obviousness which was enumerated in the case of Biogen v. Medeva, in which a problem in rubber industry of overcuring or undercuring was resolved, by ensuring the time of curing the rubber with the help of the new device included in several of its steps use of a mathematical formula and a programmed digital computer. The computer programmes can be categorised as a kind of algorithms or mathematical formula. In United States of America mathematical programmes, algorithms and scientific truths are outside the purview of patent protection. But the court held that the mere presence of a software element did not make an otherwise patent-eligible machine or process un-patentable. The United States Supreme Court came with a remarkable judgment by giving a new interpretation for the protection of software. We can say that, it was the beginning of software patenting in United States. It distinguishes the computer programmes as computer programmes per se and computer programmes which are used for the industrial application of a device. The significance of practical application of software in the business and technology was recognised and appreciated at the infancy of software industry itself.
In India by The Patents Act 1970 as Amended by (Amendment) Act, 2002 radically changed the definition of “invention” and also excluded “a mathematical method or a business method or a computer programme per se or algorithms” from patentability. The Indian legislature appears to have tacitly approved the formulation in this case by importing the wording. It was generally understood that a product embedded with a computer programme producing a ‘technical effect’ and having an inventive step is patentable. In India computer programmes per se are protected under The Copyright Act, 1957 as a literary work. It protects only the language of the computer programme i.e. object code and source code, but not its technical application. The software manufacturing companies will get a long term protection under copyright law. They do not want a long term protection, but want a strong protection even if its period is short. That means, they would like get a protection of the technical application of the software itself, which constitutes a functional aspect, an ingredient to get patent protection. It seems clear that software patents are actually preventing the adoption of new technology rather than encouraging innovation. In India software patents are impossible. The argument advanced against patenting in India is that copyright law can adequately safeguard the interests of authors and as such no patenting would be necessary and patenting would hinder innovation and development of new technology, which can act as a launch pad to propel the economy.
The recent developments regarding the grant of software patenting in USA and in other parts of the world is that it has become a serious threat to the Open Source Licensing. There is tremendous animosity in the free software community towards software patents. Today, even companies such as IBM, Sun, Texas Instruments, and CISCO have joined the growing Free and Open Source Software (FOSS) community opposing software patents. Most of these companies have publicly stated that they are filing patents only for defensive purposes. Indian law also bars software patents. With regards to proprietary versus FOSS, India needs to analyse and define what should be its trajectory. There is enough grounds to believe that if Indian companies want to move from services model to a product model, software patents and proprietary software will not be the route to take instead, India should promote FOSS, as Brazil and China are doing. Much of this has been caused by free software or open source projects shutting down when the holders of patents covering aspects of a project demanded license fees that the project could not or was not willing to pay or offered licenses under terms which the project was unwilling to accept, or could not accept because it conflicted with the free software license in use.
The meaning of patents itself is the disclosure of invention by the inventor to the society or state and state will grant a temporary monopoly to the inventor. Grant of patent is an incentive to innovation. So in my view, since software creation comes within the definition of “invention”, it is proper to give protection of software under patents rather than by giving protection under copyright law. Software is not merely a language containing source code and object code. It has a function and it is an application which satisfies the criteria of “inventive step” for patents protection. In my opinion, equipping software with copyright protection in fact degrades the significance of soft ware inventors.
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