Wednesday, March 18, 2009

TRIPS Treaty and Computer Programs

International law has grown stronger over the past two decades. Treaties have shaped municipal laws more firmly, and local governments are being held responsible and accountable before the larger comity of nations. The tightening grip of international law is best illustrated by legislation for computer programs.

The TRIPS Treaty, 1994, paved way for uniform copyright, patents and trademark practices round the globe. Article 10, provided copyrights for "Computer Programs and Compilations of Data", as follows:

1. Computer programs, whether in source or object code,
shall be protected as literary works under the Berne Convention (1971).

2. Compilations of data or other material, whether in machine readable
or other form, which by reason of the selection or arrangement of their
contents constitute intellectual creations shall be protected as such.
Such protection, which shall not extend to the data or material itself,
shall be without prejudice to any copyright subsisting in the data or
material itself.

By Act 38 of 1994, India amended the Copyright Act, 1957, to give effect to obligations under the TRIPS Treaty. The Patents Act, 1970, was also amended by Act 28 of 2002, excluding mathematical or business methods, computer programs per se or algorithms from the definition of inventions.

The Patents (Amendment) Ordinance, 2004 (No. 7 of 2004) promulgated on 26.12.2004, amended the Patents Act, 1970, modifying 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,

(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;"

This was opposed to the scheme laid by the TRIPS Treaty, and naturally provoked the developer community. Several representations were made to the Government of India and ultimately the amendment was dropped. Snips from my posts and events organised then, are attached below:

[1] Representation to the Government of 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,

(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
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

"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

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

(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

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
(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 contentious 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


Rabindranath Tagore, in his Gitanjali, wrote:

"`Prisoner, tell me, who was it that wrought this unbreakable

`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.

We request 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.

[2] Workshop on "TRIPS Treaty and Computer Programs" at the University of Madras, to educate the developer community on legal issues:

About the Department of Legal Studies:

The Department of Legal Studies, University of Madras, was founded by Prof. Charles Henry Alexandrowicz, in 1952. Dr. N. Balu, a leading expert on International Law, particularly the Law of Seas, and Constitutional Law, now Heads the Department. The Department also has a Chair in Intellectual Property Rights, established by the Ministry of Human Resource Development, Government of India.

The Department leads the country in organising the National Rounds of the Philip C. Jessup Moot Court Competition on International Law, and is an active centre for debates touching upon International Law and Constitutional Law. The Department awards the Master of Law degree to candidates who complete its cources on International Law and Constitutional Law. It also conducts courses on Law relating to Patents, Copyrights, and Trademarks.

About the Workshop:

The Department of Legal Studies, University of Madras, is organising a workshop on "TRIPS Treaty and Computer Programs", that is tentatively scheduled for 8th April, 2005 (Friday). The one day workshop is intended as an "out-reach programme" for software professionals and students specialising in international law.

The legal aspects of Computer Programs are governed by the TRIPS Treaty. Globalisation, governance, and almost every human activity hinges upon Computer Programs and its legal setting. The workshop will discuss the true nature of computer programs, and the character of rights surrounding them. The harm caused by mis-application of patent law to cover computer programs in some member states of the TRIPS Treaty, notably US and Japan, and the possible remedies against such practices, will also be analysed threadbare.


* 9.30 AM - 10.00 AM : Tea and Registration

* 10.00 AM - 10.45 AM : Inauguration 10.45 AM - 1.00 PM : Talks by Experts/Invitees / Tea
o 1.00 PM - 2.00 PM : Lunch 2.00 PM - 3.00 PM : Talks by Faculty/Students

3.00 PM - 3.45 PM : Open House & Discussion / Tea 3.45 PM - 4.30 PM : Valedictory

List of Speakers:

Sivasankar Chander, Chief Architect, Qryptix
* Topic for Talk : Introduction to Computer Programs

M. Murali, Business Practices Division, AU-KBC Research Centre, MIT.
* Topic for Talk : Business and Trading in Computer Programs

K. Ramanraj, M.L., Advocate, High Court, Madras
* Topic for Talk : TRIPS Treaty and Computer Programs

Brief Summary

Sivasankar started the discussion with the difficulties involved in testing "program equivalence", giving two short programs, based on the Goldbach conjecture, calling one as the goldbach (about 7 lines) and the other the ghost_of_goldbach (about 3 lines that always returns true). Testing program equivalence is at the heart of any "software patent" infringement suit, and Shiv proved that it is well impossible to scientifically research and conclude that two given programs are equivalent. There are not even any standard rules for scientifically testing and concluding "program equivalence".

Sivasankar holds a B.Tech. from the Indian Institute of Technology, Madras, and has done M.E. in Computer Science, at !IISc., Bangalore. He has worked for IBM, USA., and has presented several papers on computer science, and software development. Well, he is a typical expert who may be called to testify in a "software patent" infringement suit, to "prove" that a given computer program infringes upon a given "software patent". It is apparent that no expert can assert on oath that two programs are "equivalent" or that one is a copy of the other, except when the two are exact copies.

Murali discussed the various business models used by software entities to do business.

Ramanraj basically summarised the recent events that has mostly been discussed at in-parl mailing list; and to enliven the proceedings; took the audience through the recent decision pronounced in Eolas v. Microsoft, to explain how the system works in the US, and asked those present to explore and research the steps that could be taken against the illegitimate practice of "software patents" which are a barrier against free trade.

[3] A note on why no patents for mathematical or business methods or computer programs per se or algorithms in India:

Rebentisch wrote to
pointing to the following article:
India: Patentability of Softwares in India
30 November 2005
Article by Manisha Singh Nair

,----[Manisha Singh Nair wrote:]
| The Patents Act refers to computer programs in Section 3, which deals
| with inventions that cannot be patented. According to S. 3(k), a
| computer program per se is not patentable. This makes us think about
| what the term ?per se? stands for in this context.
| According to the Webster?s Encyclopedic Unabridged Dictionary, the
| term ?per se? refers to "by, of, for, or in itself; intrinsically". If
| we are to use this definition we can well assume that the software as
| such cannot be patented. But don?t the same words of the provision
| tell us something more- that if the claimed invention is some thing
| more than?mere? software, it is patentable?

The Patents Act declares in Section 3, among other things, that "a
mathematical or business method or a computer program per se or
algorithms;" are not inventions within the meaning of the Act.

Under Section 7, every application for a patent shall be for one
invention only. It is fairly obvious that an invention that relates
to a mathematical or business method or a computer program in itself
or algorithms are not patentable in India.

We only need to investigate the situation when an invention
incidentally includes a computer program or even mathematical methods
as part of a single invention.

The Copyright Act defines "computer programme" and "computer" as

"computer programme" means a set of instructions expressed in words,
codes, schemes or in any other form, including a machine readable
medium, capable of causing a computer to perform a particular task or
achieve a particular result;

"computer" includes any electronic or similar device having
information processing capabilities.

The "computer" then refers to devices having information processing
capabilities, that may be

[1] electronic: Without doubt, laptop computers, desktop computers,
mainframes and other electronic devices with "information processing
capabilities" fall within the meaning of "computer". The general
scheme of a generic computer could be as follows:

| | | |
|Input>==> Information >==>Output|
| | Processing | |
| +----^v----^v---+ |
| | Storage | |
Fig 1: An electronic computer

[2] The definition also includes "similar devices" within the meaning
of "computer". That brings within the purview of the definition of
"computer", mechanical devices like abacus, slide-rules, the
Analytical Engine of Charles Babbage and any other device that could
do information processing.

| o o o o o o o o o o o o o |
| | | | | | | | | | | | | | |
| | | | | | | | | | | | | | |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
| o o o o o o o o o o o o o |
Fig 2: Abacus - a mechanical computer

Now, consider the following:

A set of instructions to operate an abacus.
A novel method to operate an abacus.
A set of instructions to operate an Analytical Engine.
Emulators that mimic an abacus or Analytical Engine.
Programs to operate electronic computers.

In all the above cases, the instructions are instructions in
themselves to enable computation on computers and there could be no
confusion whatsoever that they are "computer programs per se" and not
inventions withing the meaning of the Patents Act.

It is true that computers are universal machines, and we could express
many inventions as computer programs in the form of a list of
instructions. Many manufacturing processes could be expressed as an
abstract series of steps, that at first sight, would appear as though
the invention could be fully implemented as a computer program.
Closer analysis will reveal that "computer programs per se" are
clearly distinguishable from other inventions dealing with industrial

According to Patrick Henry Winston, "Artificial Intelligence" is study
of the computations that make it possible to [1]perceive, [2]reason
and [3]act." The dictionary meaning of "Intelligence" is "the ability
to gain and apply knowledge and skills". Only those inventions that
exhibit intelligence are patentable as Section 3(a) excludes "an
invention which is frivolous or which claims anything obviously
contrary to well established natural laws".

Intelligence is a natural attribute found exhibited in life forms, and
specifically required in an invention, to be patentable. ("AI" is
plainly, artificial "man made" intelligence, where the measure of
intelligence is only incidental). Intelligence exhibited by
inventions may be analysed as follows:

Intelligence/ |[1]Perception |[2]Reasoning |[3]Action
Invention |(input) |(logical steps)|(output)
Computer |input devices |information |output devices
| |processing |
Abacus |push beads with|instructions |read/feel position
|fingers | |of beads
Bread Making |flour,water, |step by step |bread
|salt,heat |mnf process |
Semifab Unit |silicon,gold, |VHDL & process |Microprocessor
|topography,etc | |
Humans |ears,nose,eyes,|brain, |arms,legs,speech,
|tongue,skin |nervous system |getital & excretory
Robots |vision,hearing,|software |move with wheels,
|IR,.. | |speakers, monitor ..
Fig 3: Analysis of Inventions based on Intelligence exhibited

With a computer, that by definition means only devices capable of
information processing, it is neither possible to input flour, water
or salt nor get bread as output.

The manufacture of bread may involve the following:
Step 1: Take one measure of flour
Step 2: Add two measures of water
Step 3: Mix flour with water and add 1/100th measure of salt & yeast
Step 4: Bake in oven for 25 minutes at 200 F

The above involves "mathematical methods" at each step, and the
invention could never be described without use of mathematical
methods. Under Section 10 of the Patents Act, the patent may be
supplemented with models and samples which however are not deemed as
part of the specification. Every invention could use other
inventions, mathematics, laws of physics, computer programs, and other
aids to describe the invention coherently, but they would never be
deemed as part of the claim. If the claim relates to just
mathematical methods or computer programs per se, then they would
simply be rejected as not being inventions within the meaning of the

It is very clear that "Software patents" are illegal and unlawful not
authorised by law in India.

Literary works upon patents are one of the chief benefits of the
patent system. For example, let us take Posilac 1 Step (US patent no:
4,985,404). This is used to "increase" milk yield of dairy cows. The
patent expires on Jan, 15, 2008 and until then, others cannot use
Posilac without permission from the patentee. However, nothing
prevents physicians or scientists from researching the patent to
publish articles or make other decisions about the effects of Posilac
on cows and humans. Research scholars could write simulator programs
to explain the invention or analyse its effects, without in any way
infringing upon the patent.

A final note: The line between hardware and software is vanishing.
Using a language like VHDL, it is possible to describe very complex
hardware as program constructs, and also implement a solution that may
defy the distinction maintained between "computer" and "computer
program". We may not be very far away from the day when engineers
come with a machine and say: "you never have to change hardware. If a
better design becomes available, just change the software, and the
atoms will rearrange themselves, and presto you would have a new
'hardware' in place". In such a situation, the computer program
itself could transform the computer, and this is certainly the next
logical step in electronic design automation. A large chunk of
hardware may then stand excluded from patenability, but then, it would
be a case of damnum sine injuria for hardware manufacturers.