
No patent if invention lies only in computer program, says Indian Patent Office - joshsharp
http://www.business-standard.com/article/economy-policy/no-patent-if-invention-lies-only-in-computer-programme-says-indian-patent-office-116022200875_1.html
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gilgoomesh
I've always though trying to discriminate against "software" patents was
particularly stupid.

First: it simply encourages patents where the entire computer is included in a
description of the software, turning it into a product/apparatus patent.

Second: the problem most people have with software patents is not the fact
that software is being protected. The problem is that software patents are
rife with "inventions" that are merely a low-effort merging of existing ideas
– usually ideas that are well established and the context is changed slightly.

This second point applies to _any_ industry, not just software. Biotech
industries are continually trying to patent drugs and genes using the same
pattern. Fix the stupid determination of novelty, rather than discriminating
against certain kinds of invention.

~~~
guelo
The supposed benefit to society from granting a monopoly on an idea is that it
encourages people to invent new ideas and disclose their inventions. Neither
ideas or disclosure of ideas are in short supply in the computer world today.
Software patents provide no benefit to society.

~~~
rayiner
It depends entirely on your field. I spent most of my career as an engineer
working on R&D for software that would likely sit in a baseband in a
production implementation. We spent millions of dollars building it, and
nothing comparable is publicly available. The secret sauce in a baseband is
definitely the sort of thing that's in short supply. And it's software.

That said, the patent office may not be qualified to distinguish between
something that someone whipped together and something that took a team of PhDs
years to invent. And maybe that problem is an intractable one.

~~~
amluto
> We spent millions of dollars building it, and nothing comparable is publicly
> available. The secret sauce in say Qualcomm's baseband is definitely the
> sort of thing that's in short supply.

There's certainly short supply of the secret sauce in Qualcomm's baseband.

Your team spent millions building it, and, in order to give a sufficient
incentive for teams to do similar things to that, the law should probably give
some protection so that Qualcomm can make a profit from it. But you're
conflating a bunch of things here:

1\. Qualcomm knows the product and has the engineers. Qualcomm is uniquely
positioned to build usable reference implementations, chips, etc, and to
charge for this service and for support. This requires no legal protection
whatsoever.

2\. Qualcomm holds copyright on the code base. This has nothing to do with
patent law, and I think that very few people would dispute that copyright
makes sense in this context. (Whether long-term copyright makes sense is a
different story altogether. I tend to think that a decade or two would be more
than enough to make Qualcomm's investment worthwhile enough that they would do
it.)

3\. Qualcomm holds lots of patents that prevent other people from spending the
same millions of dollars to develop a competing product without taking
significant risk of being sued. I, and many others, think that the law should
_not_ offer Qualcomm this protection.

4\. As you said, the sauce is secret. I think the question of whether Qualcomm
should be permitted to keep the sauce secret and how much the law should help
or hinder this secrecy is worthy of at lease some debate.

~~~
chris_va
> As you said, the sauce is secret. I think the question of whether Qualcomm
> should be permitted to keep the sauce secret and how much the law should
> help or hinder this secrecy is worthy of at lease some debate.

This is going in circles. You cannot patent something without disclosing it.
So, either Qualcomm has a patent, and it isn't secret, or they don't have a
patent (nor can they ever, after 18 months) and the argument is moot.

~~~
kuschku
> This is going in circles. You cannot patent something without disclosing it.
> So, either Qualcomm has a patent, and it isn't secret, or they don't have a
> patent (nor can they ever, after 18 months) and the argument is moot.

Yes, but then software patents should require you to release a full reference
implementation with full documentation under a free (BSD, MIT) license as soon
as the patent runs out.

~~~
ianlevesque
If we were going to enforce the same transparency that non-software patents
give then they'd release the full reference implementation right in the
patent.

~~~
kuschku
Exactly — but for all practical measures, it does not differ if they release
it in the patent, or only when the patent runs out.

Currently, they don't release it at all.

Additional regulation I'd like to see: Any neural networks trained based on
data of users have to be completely public domain. If Google wishes to train
recaptcha, they should either pay for people to train it, or give back to the
public the value that the public created.

~~~
mattlutze
It does matter, because if the publish it in the patent I can start planning
to build something with years before the patent expires, or time improvements
I make on it for that expiration.

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Joky
How is it different from Europe? According to Wikipedia [0]: "Under the EPC,
and in particular its Article 52, "programs for computers" are not regarded as
inventions for the purpose of granting European patents"

[0]:
[https://en.wikipedia.org/wiki/Software_patents_under_the_Eur...](https://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention)

~~~
nileshtrivedi
Not very different. India (like EU) had been granting software patents in
violation of the law, so people complained and the new guidelines clarify this
matter.

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yalogin
This is awesome. India is doing the correct hung these days. First they show
Zuckerberg the door and then this. Kudos to whoever is in charge of this
change.

~~~
rdsubhas
Not just that. Disallowing evergreen biotech patents, making generics to be
free from price fixing, fighting against yoga/ayurvedha/siddha patents
worldwide, right to food, right to education, right to information and so on.
Seriously India gets a lot of flak, but we're leading the charge in many
areas!

Just take a look at this:
[https://en.wikipedia.org/wiki/Traditional_Knowledge_Digital_...](https://en.wikipedia.org/wiki/Traditional_Knowledge_Digital_Library)

~~~
quetzthecoatl
Agree with the sentiment, except for RTE.

How in the world is RTE anything but pure evil? For a country that is in dire
need of new schools, how can any law that closes existing schools with flimsy
reasons and zero due process (not that it matters when you have 200 years
backlog in courts) be anything but pure evil? These are private schools
started by individuals with no government funds. It has made impossible for
hindus who form 85+% of the population to start and operate schools
(irrespective of the social status/caste/financial status). It has essentially
made an essential commodity that is education scarce (as you know it's not
economically viable for 85% of the population to start one).

~~~
jjawssd
Wat is RTE

~~~
manquer
Right to Education

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chrisbennet
_" To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries"_

Software patents are currently a drag on innovation. The benefits of giving a
company a monopoly in exchange for sharing their software "invention" isn't a
good bargain - especially when their "invention" will be, and has been,
independently invented over and over again 99.9% of the time.

Patents may be OK for some things but they cause more harm than good in the
software field.

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datamanc3r
The US equivalent of this ruling would be the Alice Corp. v. CLS Bank
International. Very similar ruling by the US Supreme Court, urging the USPTO
to stop endorsing process patents in general because of their claims to
abstraction.

This ruling is reverberating throughout the legal community.

It's great, and we can make real strides in the medical, business, and
software fields without being hindered by trolls and monopolies.

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datamanc3r
I'm really liking this trend. The US's version of this is Alice v CLS Bank
case. Very similar rulings, and the effect is reverberating throughout the
legal community.

I think it's great that process patents in general are going bye-bye. Now we
can make some real strides in the medical, business, and software fields
without being deterred by trolls and monopolies.

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decafbad
Turkish Patent Institute also explicitly states _no software patents_.

Search for _programs_ :
[http://www.tpe.gov.tr/TurkPatentEnstitusu/resources/temp/FCF...](http://www.tpe.gov.tr/TurkPatentEnstitusu/resources/temp/FCF70E4B-ABEE-49E3-A769-5D1343953E85.pdf)

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chris_wot
Right, all Linux distribution move their patent encumbered software to a
special Indian-based repo server. Or someone else does it with donations from
Westeners to keep the servers running.

I can dream. But should this work, then that's the end of the U.S. and
European hegemony on abstract ideas like business processes, patents based on
processes "that use a computer" and any mathematical concept - which puts paid
to patents on most network protocols and compression algorithms.

And what a great world that will be. The first grand step in killing all
patent trolls.

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quanticle
Does this mean that software patents are not valid in India? If so, what will
this mean for trade relations between India and the US?

~~~
analog31
US patents are generally not valid in India. As I understand it, you have to
patent something in every country where you want protection. In practice, you
choose how many countries you need, in order to protect a reasonable market.
Sometimes you can guess wrong about this, of course.

~~~
tomkinstinch
[IANAL] The PCT makes it possible to shotgun patent applications globally
though, right? India is a contracting state.

1\.
[https://en.wikipedia.org/wiki/Patent_Cooperation_Treaty](https://en.wikipedia.org/wiki/Patent_Cooperation_Treaty)

~~~
analog31
It does, but as I understand it, you still choose where you want to apply for
a patent (and consequently, how many fees you have to pay).

I have a number of patents. For my earliest ones, the lawyer suggested filing
in the US, and in any country where a competitor was located. Later we started
filing in US, EU, and in some cases Japan. Today, China is on the list, but
not India.

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studentrob
Finally someone with some common sense.

Software is already protected by copyright.

~~~
kazinator
Not in the same way that it is protected by patents! Copyright protects the
expression, not the idea. If the idea isn't patented, then someone else can
implement it from scratch using their own copyrighted code.

Hardware blueprints are also copyrighted; and that also doesn't protect the
inherent idea.

Nete that this new rejection in the Indian patent system is not only of
software patents but in general "mathematical methods".

If you come up with some amazing new crypto after 25 years of painstaking
research, India says that you cannot patent the idea, and so anyone who learns
about it can write implementations of it in code and distribute them in India
without having to license anything from you.

Of course, most software patents are garbage, but that's because they are for
trivial things which anyone could come up with easily and/or have tons of
prior art that the lazy slobs at the USPTO didn't bother hunting down, or are
so broad that they apply to anything. (E.g. "some processing method for
converting one file to another" or whatever).

It's not so clear cut that that, say, RSA should not have been patented.

~~~
jacquesm
Patents also don't protect an idea.

Patents protect the novel and unique features of an invention in return for
disclosure.

~~~
quadrangle
no, patents _restrict_ the supposedly novel and unique features of an
invention in return for campaign donations to politicians who protect the
patent-monopoly system. The general public doesn't get anything in return
(well, obfuscated and useless patent application stuff, but that's only
counterproductive waste, not value).

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simula67
So does this means we can create ISOs of Ubuntu etc with all the media codecs
pre-installed and distribute them freely in India ?

~~~
gayprogrammer
Copyright is different from patents.

~~~
Qwertious
The codecs used in GNU+Linux don't infringe copyright, only patents.

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Kiro
I thought this was how it worked in most countries except the US.

~~~
jpkeisala
Exacty, it does. You cannot patent software as you cannot patent math except
maybe in US.

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musesum
Uhm, this sounds a lot like:
[https://en.wikipedia.org/wiki/Diamond_v._Diehr](https://en.wikipedia.org/wiki/Diamond_v._Diehr)

Which is essential the beginning of patents, in the US. Basically, the
software has to run on a hardware device.

How is it different? (IANAL)

~~~
nileshtrivedi
The Indian patent office has given many examples in their guidelines to
clarify what is patentable and what isn't. Looks like it'll be good for a
while (unless the parliament changes the law).

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z3t4
Because a computer program is just a set of instructions, you could argue if
we even need copyrights!? Personally I think software copyrights is a nice
middle way.

Software pattens is just silly, you want to have comments in your code? Pay
Microsoft! You want to make object oriented code? Pay Oracle. Need networking?
Pay Facebook.

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afsina
I also find this distinction stupid. Just abolish all patents and make your
business plan accordingly (High quality products, Trade secrets, Saturating
the market, Early entry advantage, etc.) I have yet to see a compelling
argument against this.

~~~
Qwertious
The problem with trade secrets is that they're never made public, and can be
lost if the person holding them dies. If they're granted a monopoly on the
secret in exchange for publicly documenting the secret, then the rest of the
world is better off once the patent period expires - the trade secret is now
trade public knowledge.

The problem is that if they make up a BS "trade secret", they can get benefits
without actually having anything to contribute, which is the textbook
definition of rent-seeking.

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tehwalrus
So, just like the EU definition then; where software patents are disallowed.
Good.

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99_00
Does this mean that in India, if a big company likes a startup they can just
clone their product? It's has to be cheaper than acquiring.

~~~
MichaelApproved
In many cases, cloning is the easy part. Building the community of customers
is where the real challenge is. Companies are often acquired for their
customer base, not their IT. Buy out price calculation is done on a cost per
user.

~~~
99_00
But what about the products who's value isn't in their user base?

~~~
MichaelApproved
What's an example of that?

~~~
99_00
A compression algorithm.

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acchow
What if you write the program into silicon?

~~~
hodwik
That implementation of the program in silicon would be patented, but if
someone wrote it again as code they'd be good to go.

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danfinlay
Hasn't this judge seen the Matrix?

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nashashmi
Does this make UI innovations unpatentable? Can GUI be considered a hardware?

~~~
cududa
How would a graphical representation on a screen be considered hardware?

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tremon
Enter software patent enforcement through trade agreements in 3, 2, 1...

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idibidiart
How about a hardware invention/device made entirely of FPGAs?

~~~
josaka
I'd be curious to hear a principled explanation for why a patent on a circuit
implementing algorithm should be patentable while the same functionality is
not worth protecting when encoded in memory as software.

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crimsonalucard
What is their definition of "Computer" ???

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joe563323
I never thought this could happen in any country. Just awesome news.

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ronakdoshi
This seems to be the result of The groups, which raised protest against the
previous guideline issued in August, 2015.

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blazespin
Right. Go from like 20 years to 0 years.

Does anyone ever think that maybe they should go to 5 years for software
patents instead? Why go from one extreme to another?

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tn13
Honestly I would not give much important to Indian Patent Office. It can be
appealed in High Court and Supreme Court which may take our lifetimes to
arrive at any conclusion

~~~
nileshtrivedi
The patent office has just re-affirmed the law, not changed the law (because
it cannot). Software patents have come up time and again and every time, the
parliament has rejected them.

~~~
tn13
Doesn't matter. Courts can arbitrarily change what is Patent Office's
interpretation. Unless it has passed through SC I wont even bother.

