JTD, my replies below. Have trimmed the mail a bit for brevity. On Wed, Aug 11, 2010 at 2:39 PM, jtd <[email protected]> wrote:
> On Wednesday 11 August 2010 13:50:57 Venkatesh Hariharan wrote: > > On Wed, Aug 11, 2010 at 12:05 AM, jtd <[email protected]> wrote: > > > On Tuesday 10 August 2010 16:09:33 Krithika wrote: > > > > Dear All, > > > > > > > > The Centre for Internet and Society (CIS) is filing a pre-grant > > > > opposition to a software patent application by Microsoft. > > > > > > As an adhoc measure too it will wind up as agreeing in principle > > > to software patents. The patent law is explicit in not allowing > > > software patents. The "per se" term is (imo) a qualifier to the > > > next parts which state that a programmable machine with software > > > does not qualify. > > > > Hence we should be opposing software patents not on terms of prior > > art > > > > > or obviousness, but merely on the grounds of being bad practice > > > by the patent office. > > > > Dear JTD, > > > > It is a bit of a complex issue. There are some people in the patent > > office who agree that this is bad practice, but the question is, > > who is will bell the cat? > > CIS could (should) follow a dual track. > > > I see the oppositions proposed by CIS as > > valuable because it makes use of the remedial measures made > > available to Indian citizens under the Patent Act. > > I am only voicing concern about a "fight with one hand" approach. > Without opposing all software patents as a whole, you inevitably wind > up legitimising software patents and reducing the whole argument to > good and not good patents. The US is an example, where they are now > debating the patentability of software and business methods - after > screwing themselves thoroughly. > In our case the legislation has provided a clear statement on the non > patentability of software, yet we choose to take the more slippery > route for a defense. > > The final result is that disproportionately large resources have to be > deployed in a thoroughly useless activity, by groups most vulnerable > and with the least resources. > In 2005, we all fought to ensure that the Patent Amendment Act did not allow technical effects of software to be patented. Because of the fight that the open source and free software communities put up, the language of Section 3(k) reverted back to its original wording, "3(k) A mathematical or business method or a computer programme per se or algorithms are not patentable." What we need to do now is to hold the patent office accountable to the will of the Indian Parliament. If you recall, the government had in 2004 or 2005, promulgated an ordinance that allowed technical effects of software to be patented. There was an uproar against that ordinance and the government had to scrap that ordinance and table it as a bill in the parliament. The Left parties, who wielded significant influence with the UPA government, played a key role in defeating these amendments. During the brief interim when the ordinance was in force, around 200 patents were granted. When the Amendment threw out technical effects of software, these were not invalidated and this is one task that is pending from our side. To sum up, we have been largely successful in "opposing all software patents as a whole" at the policy level. However, at the level of the Indian Patent Office, there is still some work to do. Venky
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