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| Latha Jishnu: Bilski and the madness of methods | |
| PATENTLY ABSURD | | Latha Jishnu / New Delhi November 12, 2008, 0:28 IST | |
Why, you may well ask, is the denial of patent to Bernie Bilski for a method of managing weather-related risk in commodities making the software open source community jump up in joy? A particularly happy lot is the lobby campaigning against software patents in India. So what’s the link?
Although the Bilski claim for a patent for a method to manage weather-related risk through commodities trading is not related to software, it has come to embody the madness of business method patents that has gripped the US in the past decade. The turning point came in 1998 when the US Court of Appeals for the Federal Circuit, the nation’s top patent court, upheld the Signature Financial Groups’ claim for a patent on a data processing system for mutual funds. It was that ruling which opened the floodgates to business method patents, many of which were for processes as absurd as Amazon.com’s one-click to buy goods on the Internet (this was quashed later), prompting industry giants such as IBM and Sun Microsystems to call a halt to the madness. A few of the more absurd examples of such patents, most of them related to software methods, have been chronicled by this column which has argued that the patent thicket thus created tends to stifle innovation and place unwarranted obstructions in the path of developers.
Interestingly, on October 30, the same US court that allowed the patenting of a process if it resulted in a “useful, concrete and tangible result,” whether that result arose from a physical machine or the result itself constituted a physical transformation, rejected Bilski’s patent. What the court has done now is to re-establish the ‘machine-or-transformation’ test for the patentability of a process. In other words, a process technology must be tied to a particular machine or apparatus, or be able to physically transform a particular article into a different state or thing.
The Bilski case became a touchstone because it brought everyone into the debate. When the USPTO rejected Bernie’s claim saying it amounted to an attempt to patent an abstract idea, he appealed to the court. Possibly because of the raging controversy in the US over business method patents, the court did something unusual: It asked all interested parties to give their views, not just on the Bilski issue but also on the question of business methods patents. This brought in academics, inventors, industry, patent attorneys and even the American Civil Liberties Union, which champions free speech, into the fray. The ACLU made a strong case against patents for abstract ideas because it would be tantamount to denying the constitutional protection for freedom of thought.
Naturally, a case with such overtones has found resonance everywhere, not least in Bangalore which has become the hotbed of resistance to software patenting in the country. Coming under the umbrella of Free Software Users Group — a clutch of organisations comprising the Centre for Internet and Society, the Delhi Science Forum, Red Hat, IT for Change, Open Space, as well as the Alternative Law Forum — has been making passionate cause against the Indian Patent Office which has been bypassing the law and granting patents to the big software companies.
A benign explanation is that such patents have been facilitated by the perceived ambiguity in the Patent Act amendment of 2005. Sunil Abraham of the Centre for Internet and Society has been quoted in Bangalore newspapers as saying “Nobody is sure what can or cannot be patented. Many people are using the clause ‘computer programmes per se’ to get pure software patents.” According to Abraham the lack of clarity in the law is being used aggressively by companies, patent lawyers and the patent office to grab software patents.
I find this interpretation rather puzzling. Section 3(k) of the Indian Patent Act lays down that “a mathematical or business method or a computer programme per se or algorithms are not patentable.” This makes it abundantly clear that computer programmes per se are excluded from the scope of patenting even if the history of India’s patent law amendments has been slightly convoluted.
With the patent office in the process of putting together a draft patent manual, the open source evangelists are seeking sharper definition of the rules on software exclusion. That may perhaps be needed. But if they are seeking comfort from the Bilski ruling then their hopes are misplaced. Patent experts in the US are even now divided over the outcome. While some believe that it could be the unraveling of business method patents, others are categorical that it will not bring down the whole class of patents for the simple reason that definitions of business method patents always end up being circular. So if there is no clear definition of something, can it then be disallowed?
India does not need to draw sustenance from the Bilski ruling. Its Section 3(k) is more than adequate. What we need to be vigilant about is its implementation.
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Discussion Board
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| anon |
November 14 , 2008 ,13:14 IST |
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| And according to shanky the logic and substance of an argument against software and BM patents must be bad just because it is propounded by the communist party. In recent months they seem to be the only sane political group around. BTW as pointed out by anonymous, do check your facts before making baseless statements. |
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| anonymous |
November 13 , 2008 ,01:26 IST |
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| The Communist party of India and Free Software Foundation are two separate and distinct entities.A lot od interested players are involved in the movement against secret sneaking in of software patents through the Draft Manual, the Knowledge Commons,Software Freedom Law Center,NY, Red Hat and other forums listed by \"shanky\" are actively involved in clearing out the confusion which as rightly pointed out in the article is only a creation of clever lawyers and ignorant Patent examiners. |
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| Shanky |
November 12 , 2008 ,05:22 IST |
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| Good attempt but can do with more in-depth research.
It would be worthwhile mentioning that the special interest group that drives all the organizations you mention is the Communist Party of India - \"coming under the umbrella of Free Software Users Group ? a clutch of organisations comprising the Centre for Internet and Society, the Delhi Science Forum, Red Hat, IT for Change, Open Space, as well as the Alternative Law Forum\". |
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