The Economic Times (Bangalore edition)
In their book, ‘Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,’ Boston University professors James Bessen & Michael J Meurer show that Murphy’s Law (“If anything can go wrong, it will”) has been working overtime in software. The authors dedicate a chapter to software and business method patents, which form 38% of all patent litigations. The authors find that in the US, software patents are twice as likely to be fought in court compared to other patents. On the other hand, business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say: “Our reading of the case law convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable.”
Lack of clear boundaries in software means that even law-abiding software developers have no clear means of avoiding a court case. The authors point out that there are 4,000 patents on e-commerce and 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost $5,000 and we have a vexatious, if not impossible, task at hand.
For most software developers, doing a patent search linked to their work is not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. It is not possible to eliminate the risk of a patent infringement lawsuit. In the recent Bilski case, which dealt with a method of hedging risks in commodities, the US courts ruled that abstract ideas, which are not tethered to a device cannot be patented. The decision reversed the 1998 State Street decision that opened the floodgates for software patents. In the EU, a move to patent, “computer-implemented inventions” was thrown out in 2005. In India, section 3(k) of Indian Patent Act says, “A mathematical or business method or a computer programme per se or algorithms are not patentable.” In the discussions on India’s draft patent manual, the interpretation of “computer programme per se” has been a contentious one. Given the lessons of history, India must avoid going down the same path. A patent is a state-granted monopoly on an invention in return for disclosure of the idea. The regime of software patents began its major expansion in the 1980s in the US. Since then, software developers have been arguing that software is better protected through copyrights rather than patents. Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. But the same defence is not possible under a software patent regime because a patent is a monopoly on the idea itself. Wven if software developers create a programme, they may be liable for infringement of one of the more than 200,000 software patents in the US.
Software patents promote innovation. Some fundamental inventions of the computer age, the Internet, compilers and spreadsheets, were created despite the lack of patent protection. It is clear that patent protection is not necessary for software. A patent must be treated with discretion. Granting a 20-year right to profit to a private entity needs to be weighed against the cost that it imposes on society. Since software and business method patents prevent independent invention, do not function well as a system of property and lead to increased litigation, India must comprehensively reject it. (The author is Corporate Affairs Director at Red Hat)
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