India-Bangladesh International Conference Assam University, Silchar 22-24 January, 2012

Computer Software Protection Monitored by Intellectual Property Right

Sudipta Roy (sudipta.it@gmail.com)

Sourish Dhar (dharsourish@gmail.com)

Department of IT, Assam University

P RESENTATION O BJECTIVES
Introduction to IPR Patents, Copyrights, Trade Mark & Design

Patents Act 1970 What is not patentable in India?

Indian Software Industry & Challenges Benefits Conclusive Remarks

W HAT ARE I NTELLECTUAL P ROPERTY R IGHTS (IPR S )?

IPRs are legal and institutional devices to protect creations of the mind such as inventions, works of art and literature, and designs. They also include marks on products to indicate their difference from similar ones sold by competitors. Over the years, the rather elastic IPR concept has been stretched to include not only patents, copyright, industrial designs and trademarks, but also trade secrets, plant breeders rights, geographical indications, and rights to layout-designs of integrated circuits. Of these, patents, copyright and trademarks are arguably the most significant in terms of their economic & historical importance.

F ORMS

OF

IPR

According to the Centre for IPR in India, the Indian intellectual property falls into four (4) major divisions

Patents : PATENTS ACT, 1970 Copyrights : COPYRIGHT ACT, 1957 Trade Marks : TRADE MARKS ACT, 1999 Industrial Designs : DESIGNS ACT, 2000

F ORMS OF IPR (C ONTINUED )

Patents provide inventors with legal rights to prevent others from using, selling or importing their inventions for a fixed period. Applicants for a patent must satisfy the norms of a national patent-issuing authority.
Copyright gives authors legal protection for various kinds of literary and artistic work. Copyright law protects authors by granting them exclusive rights to sell copies of their work in whatever tangible form (printed publication, sound recording, film, broadcast, etc.) is being used to convey their creative expressions to the public.

F ORMS OF IPR (C ONTINUED )

Trademarks are marketing tools used to support a companys claim that its products or services are authentic or distinctive compared with similar products or services of competitors. They usually consist of a distinctive design, word, or series of words placed on a product label. The essential purpose of design law it to promote and protect the design element of industrial production. It is also intended to promote innovative activity in the field of industrial developments.

PATENTS A CT 1970 W HAT IS NOT PATENTABLE IN I NDIA?

Patent is a monopoly right to an inventor

20 year period of monopoly granted for inventions that satisfy:

Novelty Inventive Step or Non-obviousness

Utility or industrial application

S ECTION 48 OF THE PATENTS A CT, 1970

Make, Use, Sell, Distribute, Import The invention within India Effect of Patents only territorial Must relate to any new process and/or a new product improvements also considered across any field of technology (TRIPs) Any process, machine, manufacture, composition of matter or material

W HAT IS NOT PATENTABLE IN I NDIA?

India has a long list of non-patentable subject matter, for example:

Computer programs per se or algorithms;

Mathematical or Business methods;

Traditional knowledge etc.

I NDIAN S OFTWARE I NDUSTRY

With the invent of computer in the early 1940s & 1950s along with internet technologies led to a new technical innovations , discoveries and business modeling. This act can be broadly termed as IT revolution.
India, in the South East Asian region, is a and will be a key participant of this wave. Indias trade body, NASSCOM, speculated export revenue from $68 billion to $70 billion for Indias flagship industry in the financial year 2012. (http://outsourceportfolio.com/nasscom-indiassoftware-exports-rise/)

I NDIAN S OFTWARE I NDUSTRY (C ONTINUED )

India is a major Information Technology software exporter in the world. India is regarded as the premier destination for the global off-shoring market of IT-ITES, accounting for almost 55% share in 2010. The amount generated as a result of export during the last three years is as under:

N ATURE

OF

S OFTWARE

As per the latest amendment seeks to expand the scope of software patents, and states 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.

Software is complex: The complexity of computer programs makes it difficult to be understood by any one person.

N ATURE OF S OFTWARE (C ONTINUED )

Software Technology evolves rapidly: Software technology is evolving much faster than other industries, even with its own hardware industry. Research in software is galloping ahead of developments. In most industries, researching new ideas often costs more money than bringing them to the market. Maintenance: In other industries, research continues up to a point where further research costs too much to be feasible. At this stage, the industry's output merely consists of replacing parts that have worn out.

H ISTORY OF S OFTWARE PATENTS

In Europe, patents were granted in the 1960s whether they involved computer algorithms or not.

In the US, patentability of softwares was not allowed by the Patent and Trademark Office in 1970s until the Supreme Court intervened and ruled in 1981 that a computer program may be granted a patent as long as it is used to represent real-world realities (e.g., a program that monitors and analyzes earthquakes).

E XAMPLES

On May 21, 1962, a British patent application entitled " A Computer Arranged for the Automatic Solution of Linear Programming Problems & quot; was filed. The invention is concerned with efficient memory management for the simplex algorithm, and may be implemented by purely software means. The patent, GB1039141, was granted on August 17, 1966. Corresponding patents in the same family were granted in five other European countries.

E XAMPLES (C ONTINUED )

The MP3 format Several patents were filed in 1987 covering various techniques and algorithms used in the mp3 format. In 1992, mp3 became an official part of the MPEG standard. Thus, mp3 became a popular choice by the Napster and filesharing movement in the 90s. In 1998, Fraunhofer Institute and Thomson Consumer Electronics asserted patent over mp3 and demanded royalties.

C HALLENGES

Piracy :The piracy in computer software simply means copying and distribution of computer programmes without the copyright holders permission. The software industry, generally, consists of creation and distribution of computer programmes. Creation of computer programme is similar to writing a novel or other literary works and it requires intellectual skill and training in software programming.

C HALLENGES (C ONTINUED )

Distribution of computer programmes in most of the developed countries occurs through a twotiered system of wholesalers and dealers, similar to that of many other industries. The dealers market and provide the software products directly to end-users of computers. The end users can be individuals, commercial enterprises, educational institutions and government establishments.

C HALLENGES (C ONTINUED )

Co-existence : Although the technological advancements are abundant , but the major players hold the lions share in the market. A new/small firm or organization can not co-exist in the current scenario due to the scarcity of financial and utility resources.

N EED

The need of the hour is a mechanism in the software patenting act so that it becomes transparent, usable and helps in knowledge dissemination at the same time reduces cost. Here, a few brief benefits of software patenting are listed although the list is not an exhaustive one in any extent. Software patenting will bring out the real & substantial potential of the softwares and core system programming.

B ENEFIT # 1

The problem of piracy & distribution could be eliminated with the low cost of proprietary and original software. The basic & foremost reason for software piracy is the high cost of the original software.

B ENEFIT # 2

Software patents is the foundation on which software companies are founded. Patents give the companies the cushion of time limited monopoly and hence can attract investments. "Tabulating Machine Company" (1896) that was the predecessor to IBM. Similarly, RSA Security got its start on now-expired patents on the algorithms used in public key cryptography.

B ENEFIT # 3

Spending large amounts of money on a new technology can be risky if that technology is expensive to develop but easy to copy. Thats the argument used in the medical drug industry. Patents create a safe zone within which to make such investments, thus boosting R&D laws in much the same way that corporate bankruptcy laws create a safe zone for entrepreneurship.

B ENEFIT # 4
Lastly Knowledge Dissemination. A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public. Organizations should be able to protect their intellectual property.

For example, RSA Security had the incentive to popularize the use of public key encryption algorithms .

C ONCLUSIVE

REMARKS

This paper briefly outlines the current scenario of the software patenting with a hope that the Government of India will accelerate its activities to bring out more awareness regarding IPR and strengthen and reshape the current patent regime towards software and core system development for the benefit of the society as a whole while with the need of stronger protection for software inventions in India.

Thank You