PS3 Games Patent

Posted on 26 December 2010 by admin

Speculations about alleged prohibition of second-hand sales of PS3 games and PS3 consoles have circulated in the past months. These rumors were fueled by market reviews about Xbox 360 consoles beating the Blu-ray-optimized Sony consoles in sales come November. Naturally, the company would employ all measures to maximize individual sales of PS3 games and their new consoles. No confirmation nor denial was heard from the Sony camp, but now, the speculations seem true with the technology patent Sony had procured.

Sony patented a technology – probably, a software – that could prevent use of borrowed PS3 games, rented consoles, and resale of game software and digital hardware. This undisclosed technology was patented five years ago in Japan but Sony had remained quiet about it. Queries about proprietorship are now prevalent, reminiscent of the hullabaloo about Digital Rights Management. Whether the electronics giant attempts to change the concept of ownership in the digital arena or not is not yet clear.

Presently, no information has been released about the software and its uses. But there have been scattered rumors that Sony may incorporate the software in the upcoming PS3 games and consoles. There would be time enough for Sony to address this before the games and consoles’ release in November. Market analysts have agreed that it is rare for an electronics and technology company to patent new technology without the intention of using it in their new products. If this is true, then the $1 billion- worth industry of used consoles and games is endangered. Social gaming is also at risk because the new technology might prevent game-sharing. This means that gamers can’t come over to their friends’ houses to share a new game or simply to play together.

Documents filed by Sony describe a process of game system copy protection. According to the papers, game systems would verify the legitimacy of PS3 games and register the codes to a particular console. Other than this, the verification codes would be deleted after registration, making the discs unreadable in other PS3s. The process will effectively prevent resale of the game discs and console exchanges. Sony had kept other plans and details about the technology but Wedbush Morgan industry analyst, Michael Pachter, suspects that the company is toying with the idea of patented games. Pachter also pointed out that the competition from Microsoft might discourage Sony from tightening software security for game discs. The most likely targets of this new technology are internet-based and downloadable PS3 content like music and movies.

Whatever the electronic giant’s plans are, the new technology manifests changing ownership trends when it comes to digital content. Even if gamers buy their consoles at $600 or their PS3 games for $100, they do not own it. They cannot reproduce or share it with their friends because Sony is still the ultimate owner of the software. No matter how much they shell out, they are just buying the license to use the software. Sure, the copy protection patent will make it difficult for pirates to manufacture counterfeit software but it does so at the expense of the gamers. Analysts are right not to put patenting software above Sony because the company was once involved in trouble because of this. It can be recalled that downloaded music from Sony has an accompanying software that installs itself automatically in computers to prevent copying and reproducing files. Though Sony later apologized, the software had already inconvenienced thousands of users. Copy protecting PS3 games would put Sony, the PS3, and the gamers at a disadvantage.

A Case Comment on Diamond V Diehr, (1981) 450 US 175

Posted on 24 December 2010 by admin

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.

An Overview of Software Patenting

Posted on 24 December 2010 by admin

INTRODUCTION

The concept of “intellectual property” in India over the last few years has taken on some epic proportions for a number of reasons. One of the primary reasons, attributable to the growing awareness among the urban Indian population, is of the significance and, more importantly, the commercial benefits in protecting its intellectual property rights both within and outside India. And under traditional principles of intellectual property protection, patent law is to encourage scientific research, new technology and industrial progress. The fundamental principle of patent law is that the patent is granted only for an invention i.e. new and useful the said invention must have novelty and utility. The grant of patent thus becomes of industrial property and also called an intellectual property. And the computer software is a relatively new recipient of patent protection.

The term “Patent” has its origin from the term “Letter Patent”. This expression ‘Letter Patent’ meant open letter and were instruments under the Great Seal of King of England addressed by the Crown to all the subjects at large in which the Crown conferred certain rights and privileges on one or more individuals in the kingdom. It was in the later part of the 19th century new inventions in the field of art, process, method or manner of manufacture, machinery and other substances produced by manufacturers were on increased and the inventors became very much interested that the inventions done by them should not be infringed by any one else by copying them or by adopting the methods used by them. To save the interests of inventors, the then British rulers enacted the Indian Patents and Design Act, 1911.

With respect to patentability of software -related inventions, it is currently one of the most heated areas of debate. Software has become patentable in recent years in most jurisdictions (although with restrictions in certain countries, notably those signatories of the European Patent Convention or EPC) and the number of software patents has risen rapidly.

MEANING OF SOFTWARE PATENTING

The term “software” does not have a precise definition and even the software industries fails to give an specific definition. But it is basically used to describe all of the different types of computer programs. Computer programs are basically divided into “application programs” and “operating system programs”. Application programs are designed to do specific tasks to be executed through the computer and the operating system programs are used to manage the internal functions of the computer to facilitate use of application program.

Though the term ‘Software patent’ does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a “patent on any performance of a computer realized by means of a computer program”.

According to Richard Stallman, the co-developer of the GNU-Linux operating system and proponent of Free Software says, “Software patents are patents which cover software ideas, ideas which you would use in developing software.

That is Software patents refer to patents that could be granted on products or processes (including methods) which include or may include software as a significant or at least necessary part of their implementation, i.e. the form in which they are put in practice (or used) to produce the effect they intend to provide.

Early example of a software patent:

On 21st Sep 1962, a British patent application entitled “A Computer Arranged for the Automatic Solution of Linear Programming Problems” was filed. The invention was concerned with efficient memory management for the simplex algorithm, and may be implemented by purely software means. The patent was granted on August 17, 1966 and seems to be one of the first software patents.

CONCEPTUAL DIFFERENCE BETWEEN COPYRIGHT AND PATENT

Software has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Thus, Software is protected as works of literature under the Berne Convention, and any software written is automatically covered by copyright. This allows the creator to prevent another entity from copying the program and there is generally no need to register code in order for it to be copyrighted. While Software Patenting has recently emerged (if only in the US, Japan and Europe) where, Patents give their owners the right to prevent others from using a claimed invention, even if it was independently developed and there was no copying involved.

Further, it should be noted that patents cover the underlying methodologies embodied in a given piece of software. On the other copyright prevents the direct copying of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies.
The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting.

However, issues involved in conferring patent rights to software are a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software and whether it should be subject to patenting.

a) Different Subject Matters

Copyright protection extends to all original literary works (among them, computer programs), dramatic, musical and artistic works, including films. Under copyright, protection is given only to the particular expression of an idea that was adopted and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright.

Generally patents are conferred on any ‘new’ and ‘useful’ art, process, method or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical.

b) Who may claim the right to a patent /copyright?

Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright.

The patent, on the other hand is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to actually apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.

c) Rights conferred

Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by the rights of fair use which are available to the public. Under “fair use”, certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently developed by two different companies, neither would have a claim against the other.
A patent confers on the owner an absolute monopoly which is the right to prevent others from making, using, offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents. Many patent applications cover very small and specific algorithms or techniques that are used in a wide variety of programs. Frequently the “inventions” mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.

d) Duration of protection

The TRIPS agreement mandates a period of at least 20 years for a product patent and 15 years in the case of a process patent.

For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years.

JURISDICTIONS OF SOFTWARE PATENTING

Substantive law regarding the patentability of software and computer-implemented inventions, and case law interpreting the legal provisions, are different under different jurisdictions.

Software patents under multilateral treaties:

o Software patents under TRIPs Agreement

o Software patents under the European Patent Convention

o Computer programs and the Patent Cooperation Treaty

Software patenting under TRIPs Agreement

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are subject to debate on the international legal framework for the patentability of software, and on whether software and computer-implemented inventions should be considered as a field of technology.

According to Art. 27 of TRIPS Agreement, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (…) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

However, there have been no dispute settlement procedures regarding software patents. Its relevance for patentability in the computer-implemented business methods, and software information technology remains uncertain, since the TRIPs agreement is subject to interpretation.

Software patents under the European Patent Convention

Within European Union member states, the EPO and other national patent offices have issued many patents for inventions involving software since the European Patent Convention (EPC) came into force in the late 1970s. Article 52 EPC excludes “programs for computers” from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program “as such” (Art. 52(3)). This has been interpreted to mean that any invention which makes a non-obvious “technical contribution” or solves a “technical problem” in a non-obvious way is patentable even if a computer program is used in the invention.

Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered unpatentable as lacking an inventive step. Nevertheless, the fact that an invention is useful in business does not mean it is not patentable if it also solves a technical problem.

Computer programs and the Patent Cooperation Treaty

The Patent Cooperation Treaty (PCT) is an international patent law treaty, which provides a unified procedure for filing patent applications to protect inventions. A patent application filed under the PCT is called an international application or PCT application. Under the PCT, the international search and the preliminary examination are conducted by International Searching Authorities (ISA) and International Preliminary Examining Authority (IPEA).

CURRENT TREND

However, before we start hailing the advent of a new era and equating the patenting of software in India it would be well worth our while to take a pause and examine the realities of software patenting. We could do this by looking at examples of countries in which software patenting has already become the order of the day, such as in the US and Japan .

United States

The United States Patent and Trademark Office (USPTO) has traditionally not considered software to be patentable because by statute patents can only be granted to “processes, machines, articles of manufacture, and compositions of matter”. i.e. In particular, patents cannot be granted to “scientific truths” or “mathematical expressions” of them. The USPTO maintained the position that software was in effect a mathematical algorithm, and therefore not patentable, into the 1980s. This position of the USPTO was challenged with a landmark 1981 Supreme Court case, Diamond v. Diehr. The case involved a device that used computer software to ensure the correct timing when heating, or curing, rubber. Although the software was the integral part of the device, it also had other functions that related to real world manipulation. The court then ruled that as a device to mold rubber, it was a patentable object. The court essentially ruled that while algorithms themselves could not be patented, devices that utilized them could.

But in 1982 the U.S. Congress created a new court i.e the Federal Circuit to hear patent cases. This court allowed patentability of software, to be treated uniformly throughout the US. Due to a few landmark cases in this court, by the early 1990s the patentability of software was well established.

Moreover, Several successful litigations show that software patents are now enforceable in the US. That is the reason, Patenting software has become widespread in the US. As of 2004, approximately 145,000 patents had issued in the 22 classes of patents covering computer implemented inventions.

Japan

Software is directly patentable in Japan. In various litigations in Japan, software patents have been successfully enforced. In 2005, for example, Matsushita won a court order barring Justsystem from infringing Matsuhita’s Japanese patent 2,803,236 covering word processing software.

Indian Position

With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”.

However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.
Hence, the amendment means that while a mathematical or a business method or an algorithm cannot be patented, a computer programme which has a technical application in any industry or which can be incorporated in hardware can be patented. Since any commercial software has some industry application and all applications can be construed as technical applications, obviously it opens all software patenting.

In any case, any company seeking to file a patent application for software under the Ordinance should ensure that its invention firstly, follows the three basic tests:

o Inventive Steps

o Novelty

o Usefulness

Therefore, it is important that the software sought to be protected is not merely a new version or an improvement over an existing code.

Further, in accordance with the specific requirements of the Ordinance with regard to patentability of software, the software should necessarily have a technical application to the industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future litigation or claims of infringements being raised, which is a distinct probability even after a patent has been granted.

CONCLUSION

India for its part seems to have adopted the more conservative approach of the European patenting norms for software. But the Ordinance definitely has its use and relevance in today’s India, particularly for our growing domestic semi- conductor industry. This, along with judicial tempering might definitely ensure a judicious use of patent protection while allowing the industry to grow through innovations and inventions, thereby, mitigating the risks of trivial patents chocking the life out of real innovations and inventions. This is the reason a patent should always be treated as a “double edged sword”, to be wielded with caution and sensitivity.

Now whether, in reality this will be implemented on a rigid basis or will become broad in scope through application (as in the U.S.), and, more importantly, whether the Ordinance would, in fact, result in increased innovation and inventions in the software industry, remains to be seen.