Software patenting would kill innovation - India must not follow America
11 August 2014 By Bhavyanshu Parasher
Today’s article is not a tutorial or anything but it’s more of a philosophical awakening for any software/computer science engineer. The major area for debate is whether software patenting is good or bad for IT industry. Most people confuse patenting with copyright or the term “Intellectual Property Right”. Let us first look at what these terms actually mean and then create a border line between these terms so that we never correlate them with each other ever again.
Copyrights - Copyrights has to deal with copying. Copying means you have copied a piece of code from somewhere and implemented it in your product. The copyright licenses protect programmers or software developers from this. Whenever a new content is generated, it is by default the copyright of the creator. Having a license just gives the creator a sense of security, a sense of protection that his/her work is protected under some law.
Patents - Patents are granted for an innovative idea. If you have an idea for a text editor program, and if some other person has already patented the idea for a text editor program, you cannot distribute your program. You will be sued. With patents, the companies can even sue the end users for using this text editor when they don’t even understand the program that is running this text editor. Yes, even the users of the program are in danger and can be sued.
Patenting - Good or evil for Softwares
The patenting system involves lot of money, investment in terms of time and paying the lawyers. Why paying the lawyers? Because the patents which are granted are never in simple terms. I have read text (Claims) of many already existing software patents and being an engineer if I can’t understand the torturous legal terms in the patents, then I don’t think patents are written for engineers. Now to prove this fact, i would like to quote statement from Richard Stallman’s speech
A few years ago, an engineer in the US named Paul Heckel was suing Apple. He got a couple of software patents in the late 80’s for a software package, and then when he saw Hypercard he looked at it and said “this is nothing like my program,” and didn’t think anymore of it. But then later on, his lawyer explained to him that if you read his patents carefully, Hypercard fell into the prohibited area. So he sued Apple, figuring this was an opportunity to get some money. Well, once when I gave a speech like this, he was in the audience, and he said “oh no that’s not true, I just wasn’t aware of the scope of my protection.” And I said “yeah, that’s what I said.”
So it’s not just me who doesn’t understand the terms mentioned in the patents. It’s a problem of every engineer. If you are getting a patent that provides some kind of protection to your work then you must know what that protection should be and what work should be prohibited under the claims of your patent. But this is not what is happening. The whole idea of patenting in field of softwares is just absurd. Let me give you reasons for why I am calling it absurd.
Why patenting is absurd in field of softwares?
Take the example of your text editor program. Mind it, this is just a very simply way of explaining how patenting works. I am not explaining what an idea might be. Someone said that this was just dumb of me to explain it in terms of text editor. Oh well, this might sound stupid to think of it terms of modern computing but back in 70’s or 80’s when computers were becoming common a thing, this can be considered a golden idea. I mean, whatever fancy stuff you see on your wonderful GUIs these days, were not there back then. Some people just completely ignore that fact. I don’t blame them for it, i blame their ignorance. So back then supposedly somebody came up with an idea of putting in a feature that would convert text to bold. The person patented this idea. That means that no one without a license can implement this feature in their text editor. It will be an infringement. When you develop a program with many different things in it, there are many things, each of which might be patented by somebody else already, and you find out about them one by one when they come to you, saying: “either pay us a lot of money, or else shut down.” And when you dealt with five of them, you never know when number six is going to come along. No matter if the whole program is your idea, you have implemented some features what might be already patented. You cannot know what has already been patented. There are hundreds of thousands of patents. IBM has over 4 thousand patents. Now when they see a feature implemented by someone else that somehow relates to one of their patented idea, they immediately sue you. See if you are a huge company, with worth billion assets, IBM will do a cross-licensing with you. That way they get access to your idea as well. In case your program included an extra beneficial feature which no other company has ever thought of, you will have to give away that idea as well because IBM will cross-license with you. The whole program is theirs as well now. They can do whatever they want to do with it. They can tell their engineers to work on it and improve it to sell a better product. They don’t believe in competition. They thrive on monopoly. This kills innovation. I mean you can’t find a workaround for idea like “having a text bold” option in your text editor. It’s just impossible. When there is no competition, or you do not have the right to compete with other companies because some of the ideas in your product were already implemented and have been patented, that’s the dead end. This is the main reason why today startups have to face law suits. They are investing more money dealing with legal issues than focusing their investment on employment and architecture. India needs to create lot of employment opportunities for people and for that we need more and more startups. It’s all interlinked.
If Newton or Einstein ever had a chance to patent their ideas/innovations, would they ever do that? How would have science progressed if they did patent their ideas. If the idea of gravity was patented, how we could have achieved what we have achieved in the field of science. Patents have destroyed innovation. They promote monopoly.
India’s Patent Act
India has always had a philosophy that if other countries are doing it then it must be right. If USA is doing it then we must follow it too. IBM can come over here and tell tech giants of India that patenting is good for you and all that bullshit. They can come and say that USA has progressed in terms of technology because of patenting but that’s not at all true. One thing India’s Patent Act makes unclear is the clause k of section 3 which states, What is not an invention:
a mathematical or business method or a computer programme per se or algorithms;
So by the definition of term “Patent” in India’s Patent Act is that any invention or innovative idea can be patented. Read it here if you don’t believe me. So I believe there should be a public opinion about this particular clause. The government policies are made for the people not to ruin the people or to promote monopoly by favoring one organization. Otherwise it’s no democracy.
#Patent granted by Indian Patent Office to Google
This is the patent I am referring to. It is titled as :
GENERATING USER INFORMATION FOR USE IN TARGETED ADVERTISING
Patent No.: 252220 Grantee: GOOGLE, INC. (U.S.A.) Date of Filing: 21/12/2004 Address: 1600 Amphitheatre Parkway, Mountain View, CA 94043 Date of Grant: 02/05/2012 11:53:38 Address for Service: M/s. DePenning & DePenning 31, South Bank Road, Chennai - 28
I tried to read and figure out the complete specification of this particular patent. Let us look at the claims PDF file given in the list. The claims written clearly depict some sort of an algorithm involving graph and nodes of the graph. I fail to understand that under India’s Patent Act, how were they granted this particular Patent when it clearly says that algorithms cannot be granted a Patent. I can clearly see that how carefully the patent has been drafted to avoid confusing it with any computer program or algorithm. Infact, if we look at other supportive documents with the Patent, there is a file called drawings.pdf or something like that, which shows that the system talks of a computer program and not some sort of hardware in particular. Look at figure 6 in that PDF document.
That’s all I want to say for now. Put up your opinion in comments. Let me understand your point of view but try to be reasonable. I am an open source enthusiast but Patenting has nothing to do with open source or free software or even copyright. As I said in the very beginning, do not confuse it with any other term. Keep this topic away from all of that. Thanks for spending time to read this. Hope we can bring some change.
One more thing, you should read this. It’s a speech Richard Stallman gave at Model Engineering College, Government of Kerala, India. It is a must read if you want to understand patents in a better way.
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