By Mathews Verghese Patent is one of the types of Intellectual Property rights which exist. It grants protection of the patented article to the inventor for a certain period of time. Thus monopoly of production of that invention lies with the patent holder. The purpose of this system is to encourage inventions by promoting their protection and utilization. Under the system Patents ensure property rights for the invention for which patent have been granted. Most of the jurisprudence relating to software patents emanates from the United States which is considered as the cradle of software patents. It began with the landmark decision of the U.S. Supreme Court in Diamond v. Diehr which ordered the patent office to grant patent on an invention even though a computer software was utilized in it. In a later decision of In Re Alapat No 92-1381(Fed. Cir. July 29,1994) clarified the position further by allowing the patenting of inventions that can be implemented in either hardware or software, provided the patent application establishes the invention as something more than a mere mathematical formula. The first software patent ever granted is probably a patent for a computer having a slow and quick access storage, when programmed to solve a linear programming problem by an iterative algorithm. applied for in 1962 by British Petroleum Company. The Patent relates to solving simultaneous linear equations. In recent times a raging controversy has been there in India as to whether software programmes should be granted Patent Protection or not. A software Patent is generally defined as a patent that protects some programming technique. Software programmes are granted copyright protection. This has been expressly mentioned in section 2(ffc) of the Indian Copyright Act, 1957. By the Patents (Amendment) Ordinance, 2004 section 3(k) was to be introduced. This section stated
(k) a computer programme per se other than its technical application to industry or a combination with hardware. On bare reading of the abovementioned section one comes to the obvious conclusion that computer programmes were been given patent protection. But on close perusal of the section it is clearly seen that computer programmes per se would not be given protection. Thus protection could only be availed of when a computer programme was combined with some hardware as well. But a controversy nevertheless existed and came to an end only when the section in question was removed by the Patent Amendment Act, 2005. Now there are two sides to this problem. On one side allowing Patent protection over any kind of computation seriously harms and hampers the creativity, productivity and freedom of software developers while writing code. The key advantage in using computer programs is that logic can be re-written without rewriting or physically modifying hardware. Thus it is easy to re-write, copy, improve and modify computer programs. A good example of such use is the Operating system called Linux. There are numerous types of Linux like Red Hat Linux, Sussex Linux to name a few. These have been developed due to the additions and subtractions of codes to the original programme. Software is complicated. It is a large computer programme and cannot be understood by any one person. Simply by way of its complexity it is dependent on a vast range of software technologies. A major computer code can comprise anywhere from 100,000 to 10 million lines of code. Software Technology evolves rapidly. It is thus difficult or impossible to produce new products in the software industry without violating numerous patents. A good example is when the patenting of data exchange standards forced another programming group to introduce an alternate format. PNG format was introduced to avoid the GIF patent problems and the Ogg Vorbis format was introduced to avoid the MP3 patent problems. Finally obtaining patent protection for any invention including software is relatively expensive. On the other side there are high costs involved in the research and development of software which has been one of the reasons of the increasing number of patent applications for software. Copyright law protects only the expression of an idea, while patent law protects the underlying idea as well provided the idea is not so fundamental that it is not within the categories of patentable subject matter. Furthermore software products are mass marketed without a signed license agreement, the strong protection provided by patent laws is increasingly important. Finally an issued patent for software may prevent all others from utilizing a certain algorithm without permission, or may prevent others from creating software programs that perform a function in a certain way. In conclusion Patents and Copyrights form complementary means for protecting software innovations. Patents cover the underlying methodologies embodied in a given piece of software on the function that the software is intended to serve independent of the particular language or code that the software is written in. Copyrights protect against the direct copying of some or all of a particular version of a given piece of software, but do not prevent other authors from writing their own embodiments of the underlying methodologies. India has progressed in leaps and bounds in the field of Intellectual Property Rights. But time is still required to let the country reach a stage when the patenting of software is acceptable. Verghese Mathews Article Source: http://EzineArticles.com/?expert=Mathews_Verghese http://EzineArticles.com/?Patenting-of-Software-Programmes-&id=367916 mexican diazepam without prescription
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