Indian Government Orders Legalisation of Software Patents

The ordinance represents further amendment to the Indian Patents Act of 1970 (see ministry gloss).

Regarding software patents, its effect is to replace the following clause, introduced in the Patents (Amendment) Act 2002, specifying as excluded subject-matter:

3(k) a mathematical or business method or computer programme per se or algorithms;
by new clauses:
3(k) a computer programme per se other than its technical application to industry or a combination with hardware;
3(ka) a mathematical method or business method or algorithms;

It is not yet clear how these changes would affect the Rules for Software Patentability in the Indian Patent Office's Manual of Patent Practice and Procedure.

Similar changes were proposed by the UK Patent Office as an alternative to the faltering directive project in early 2002 and by the Council's text of 2004-05-18. The trick consists in redefining the exclusion of computer programs (i.e. claim objects such as "a computer program, characterised by [ some allegedly new way of using conventional general-purpose computing equipment ]") to a pseudo-exclusion that has no regulatory meaning whatsoever (but may serve temporary political purposes, such as deception of journalists).

The ministry says that the ordinance is needed for implementing TRIPs requirements, for "adapting to the practice of our major trading partners", for "harmonising the practice of regional patent offices". While the ministry says that the software industry needs patents, it claims that these "only cover software products, not the algorithms as such", or even "only embedded software" (i.e. software "embedded" in a general-purpose computer). Nath's patent officials seem to have learnt the whole European repertoire of tricks and lies.

The ordinance enters into force on 2005-01-01, but lapses automatically on 2005-07-01 unless it gains parliamentary confirmation. The question of product patents for drugs, apparently without any of the flexibilities made allowable under the WTO Doha round, has raised particular widespread concern, especially among the Left and Communist parties, the partners of Nath's Congress party in the governing coalition. The issues are therefore still very much up for grabs; discussion of them in the Indian parliament will probably resume in February 2005.
© 2005/01/10 (2004/12/27) Workgroup
english version 2004/09/06 by Gerald SEDRATI-DINET