Hi, I have seen some comments in certain posts and also some articles which have appeared in press on Software patents in which it is mentioned that many patents were issued during the period when the Patent (Amendment) Ordinance, 2004 was in force . I think this requires some clarification.
Government issued the Patents (Amendment) Ordinance, 2004 on 26 December 2004 and S.3 of the Ordinance amending S.3(k) of the Act came into force from *1-1-2005* . S.3(k) was amended as “ (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms ” The Patents (Amendment) Act, 2005 was published in the Gazette on 5-4-2005 with *retrospective effect from* *1-1-2005*(the date of effect of the Ordinance) which retained the provision as it was before the Ordinance and repealed the Ordinance. The only saving is the clause in S.79(2) of the Amendment Act wherein it is stated that “Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act ” Thus the effect is as if the ordinance was not issued at all. Hence unless a patent has been granted within the *short three month period* before the coming into force of the 2005 Act, the Ordinance does not have any relevance. Even in such a case, the Amended Act holds as anything done during the ordinance period is deemed to have been done under the provisions of the Patents Act as amended by the 2005 Amendment. Hence the argument often heard of patents issued/applied during Ordinance period does not have any relevance in my opinion. How many software patents have been issued during this short period is another issue to be studied. As far as the issue of Software patents is concerned it is a fact that many patents have been granted by the Patent Office and scores of applications are being filed every month. Although the Act is clear on the aspect of patentability of software , the applicants often take advantage of the "per se" clause to sneak in many patents. This is where we need to counter them by filing Pre-grant and Post-grant oppositions and may be even revocation proceedings. The purpose of this is to create firm precedents by decisions of the Controller, the Tribunal or the Courts which would make it difficult for anybody to get patents in the realm of software. This will also prevent anybody from enforcing patents that have already been granted as they will run the risk of it being revoked by the Court on the basis of these precedents. In effect, by targeting a few key patents in these proceedings, we will be making the rest practically invalid. So organisations like the Knowledge Commons, the CIS and the Software Freedom Law Center are doing the right thing by filing Oppositions and it is not a case of accepting the concept of software patents. In my opinion the exclusion of the controversial clauses regarding software from the 2005 Amendment was a great achievement of the Community. This has in fact given us a strong argument to raise regarding legislative intent if ever we need to take this matter to the Court. Regards, Prasanth Sugathan Legal Counsel, Software Freedom Law Center 12, Birbal Road, First Floor, Jangpura Extension, New Delhi-110014 Phone# +91-11-43587126 Cell: +91 9013585902 www.softwarefreedom.in
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