On Sunday 15 August 2010 19:14:31 Prasanth Sugathan wrote: > 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 before the Ordinance and repealed the Ordinance.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.
That clarifies many many things. I have archived this mail for future reference. > 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. Precisely. The main thrust of the complaint must be on proving that the patent is for software. One may include obviousness, prior art or other quality objections in these pre /post grant oppositions, only if it is useful to the main argument. > 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 Even if such opposition is based on the " quality " argument, rather than the fundamental issue of granting patents to software? > and it is not a case of > accepting the concept of software patents. Ok. Thanks for this most useful mail. -- Rgds JTD _______________________________________________ network mailing list [email protected] http://lists.fosscom.in/listinfo.cgi/network-fosscom.in
