[Fsf-friends] Our response to the Patents (Amendments) Ordinance,
2004
Ramanraj K
ramanraj.k@gmail.com
Fri Mar 4 07:59:19 IST 2005
Vijay Kumar wrote:
>Ramanraj K <ramanraj.k@gmail.com> writes:
>
>>http://www.indianexpress.com/full_story.php?content_id=65640
>>
>>Please post any links, articles, views or opinions that could help in
>>voicing our concern against the proposed drastic amendments to the
>>Patents Act.
>>
>>
>Are we not too late?
>
Our response to the ordinance is enclosed below. It is now clear that
the Patents (Amendment) Bill, 2005, to replace the Patents (Amendment)
Ordinance, 2004 (No. 7 of 2004) promulgated on 26.12.2994, would be
taken up during the first part of the Budget Session, 2005, and the same
would be placed before a Standing Committee for further discussion
upon the Bill. Please feel free to comment on the representation
prepared earlier, so that we may send in better demands to the Standing
Committee. Please confine this thread to the amendments proposed to
Section 3(k) *only*, which is of immediate interest to the FSF India.
The others amendments are more serious and will surely ruin life, but
they have to be dealt with separately.
Thanks,
Ramanraj.
__
**
Representation made by the Free Software Foundation of India
to the Government of India to immediately withdraw
THE PATENTS (AMENDMENT) ORDINANCE, 2004 (Ordinance No. 7 of 2004)
with regard to amendments made to Section 3(k) of the Patents Act, 1970
Introduction:
The Free Software Foundation of India is a non-profit organisation
promoting the development, awareness, and use of free software in
India. We are very concerned about the recent amendments made to the
Patents Act, 1970, by the Patents (Amendment) Ordinance, 2004,
amending the provisions with regard to computer programs as follows:
"3. In section 3 of the principal Act, (a) in clause (d), for the
words new use , the words mere new use shall be substituted; (b)
for clause (k), the following clauses shall be substituted,
namely:
(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;"
Allowing patents over any kind of computation seriously harm and
hamper the creativity, productivity and freedom of all, particularly
software developers while writing code. Many organisations, including
the Free Software Foundation have been campaigning against software
patents the world over. We are shocked and surprised that amendments
to the Patents Act, 1970, with regard to computer programs, should
have been introduced so suddenty in India, by a Presidential
Ordinance, without any public debate or prior announcement at all. We
hope this memorandum would restore the status quo as quickly as
possible, for all the following reasons:
1. Amendment is ambigious and capable of easy abuse and
misinterpretation:
Though under the amended clause (k), computer programs per se continue
to be not patentable, the exceptions made thereto are not clear. All
computer programs work in combination with hardware, and all computer
programs have technical application to industry, particularly to the
software industry. A literal interpretation of the amendment with
regard to computer programs is dangerously misleading, creating the
impression as though any computer program is patentable. However, the
Ministry of Commerce and Industry has made a statement to the
following effect at http://pib.nic.in/release/release.asp?relid=6074
"In IT, the trend is to have software in combination with or
embedded in hardware such as in computers or cell phones or a
variety of other gadgets. Software as such has no patent
protection (the protection available is by way of copyright); but
the changing technological environment has made it necessary to
provide for patents when software has technical applications in
industry in combination with hardware. This has been a demand of
NASSCOM."
There are significant differences between the statement made by the
Ministry of Commerce and Industry and what the ordinance actually
says, and the intentions are not apparent from the wordings used in
the amendment. However, even assuming that the provisions of the
Patents Act have been amended to enable and make provision for only
embedded software, which is a very vague term, it would make in roads
into the freedoms and liberties required by software developers to
peacefully continue with their work and services. Any special
provisions providing for patentability of computing or computer
programs under the category "embedded software" is needless, and bad
because:
(a) The classification of computer programs into embedded software
and others is very superficial. The key advantage in using
computer programs is that logic can be re-written without
re-wiring or physically modifying hardware. Invariably, it is
easy to re-write, copy, improve, and modify computer programs,
and it is quite possible to extend the life and productivity
of hardware devices that are manufactured using scarce
non-renewable resources, merely by modifying the computer
program. People can, and often do, install new software on
embedded computers particularly when the source code is
available or to improve usability of hardware.
(b) The classification is arbitrary and opposed to principles of
equality, and the very objects of the Patents Act. Let us take
an illustration, for example a computer program named `foo'.
It is clear that foo is not patentable per se, under the
amended clause (k). But then, foo, in its technical
application to industry is made patentable. The
classification, based on mere usage, making foo an invention
only in "its technical application to industry", has no
rational nexus to the object of the Patents Act, and plainly
violative of Art. 14 of the Constitution of India. One of
the avowed objects of the Patents Act is "to ensure more
effectively that patent rights are not worked to the detriment
of the consumer or to the prejudice of trade or the industrial
development of the country". Introducing patents for any kind
of computer programs is detrimental and opposed to the objects
of the Act. The question how software patents are detrimental
and harmful is elaborately analysed and discussed at
http://lpf.ai.mit.edu/Patents/industry-at-risk.html
2. Amendment is opposed to Article 39(c) of the Constitution of India:
The Directive Principles enshrined in the Constitution of India, under
Chapter IV. Article 39 reads as follows:
"39. Certain principles of policy to be followed by the State.-
The State shall, in particular, direct its policy towards
securing-
(a) that the citizen, men and women equally, have the right to
an adequate means of livelihood;
(b) that the ownership and control of the material resources
of the community are so distributed as best to subserve
the common good;
(c) that the operation of the economic system does not result
in the concentration of wealth and means of production to
the common detriment;"
The software industry largely earns revenue by providing custom
services, and by introducing patents for embedded software, the
software service providers would be hampered by needless claims,
litigation and other un-productive disputes that cannot be easily
resolved. Patents for embedded software would lead to increasing
concentration of wealth and means of production to common detriment.
It is well known that Bill Gates of Microsoft is the richest man in
the world, and the patent regmime would only go to promote the riches
of the richest. We have no hesitation in saying that the needless
hair splitting of computer programs into embedded/non-embedded will
only entangle the Indian Software Industry in litigation, obstructing
progress to common detriment.
Other harmful consequences of the amendment:
The amendment would disturb the peace prevailing in the software
field, and may raise contentitious disputes between various hardware
manufacturers, software developers and entities, resulting in loss of
peace in the first place, coupled with loss of revenue and other
damages. It would undermine the peace of mind required by software
developers to write robust code, robbing and sapping energy away to
indulge in meaningless patent searches and other needless exercises,
that are totally not suitable for the software industry. The amendment
would only increase the cost of developing software, and take away all
the advantages that India has enjoyed so far in the embedded software
field.
Conclusion:
Rabindranath Tagore, in his Gitanjali, wrote:
"`Prisoner, tell me, who was it that wrought this unbreakable
chain?'
`It was I,' said the prisoner, `who forged this chain very
carefully. I thought my invisible power would hold the world
captive leaving me in a freedom undisturbed. Thus night and day I
worked at the chain with huge fires and cruel hard strokes. When
at last the work was done and the links were complete and
unbreakable, I found that it held me in its grip."
It is trite to observe that the amendments imposed will without doubt
chain and cripple the software industry in India, pushing the industry
into the dark dungeons of doubt, confusion and chaos. It is very
strange that NASSCOM should have invited the amendment, without taking
into consideration the serious harm and danger patents for embedded
software pose. We strongly urge the Government of India to
immediately change its sudden reversal in policy, and withdraw the
above Ordinance, as soon as possible, reverting to the more mature,
and time tested policies and patent law in force before January 1,
2005, removing the hurdles on the way for the smooth continuance of
our growth, progress and prosperity.
Therefore,
FSF India requests the Government of India to immediately withdraw
THE PATENTS (AMENDMENT) ORDINANCE, 2004 (Ordinance .No 7 of 2004)
under Article 123(2)(b), with regard to amendments made to Section
3(k) of the Patents Act, 1970.
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