27 December 2004 -- India's Minister of Industry Kamal Nath has issued an ordinance (a law that enters into force without prior parliamentary approval) in order to greatly expand the patent system, among other things by firmly establishing software patents in India.
Regarding software patents, its effect is to replace the following clause, introduced in the Patents (Amendment) Act 2002, specifying as excluded subject-matter:
- 3(k) a mathematical or business method or computer programme per se or algorithms;
by new clauses:
- 3(k) a computer programme per se other than its technical application to industry or a combination with hardware;
- 3(ka) a mathematical method or business method or algorithms;
It is not yet clear what immediate changes this would mean for e.g. the Rules for Software Patentability in the Indian Patent Office's Manual of Patent Practice and Procedure.
The Indian Patent Office has, by stretching and twisting the present law, already granted some pure software patents, and, from a short-term perspective, there is grouds for the ministry to argue that they are "merely codifying the status quo".
Similar changes were proposed by the UK Patent Office as an alternative to the faltering directive project in early 2002 and by the Council's text of 2004-05-18. The trick consists in redefining the exclusion of computer programs from patentability so that what is typically claimed in patents, namely "a computer program, characterised by [ some way of improving efficiency in the use of conventional computing equipment ]", is not deemed to be a computer program (per se), and the exclusion becomes meaningless.
The ministry says that the ordinance is needed for implementing !TRIPs requirements, for "adapting to the practice of our major trading partners", for "harmonising the practice of regional patent offices". While the ministry says that the software industry needs patents, it claims that these "only cover software products, not the algorithms as such", or even "only embedded software" (i.e. software "embedded" in a general-purpose computer). Nath's patent officials seem to have learnt the whole European repertoire of tricks and lies. The ordinance enters into force on 2005-01-01, but lapses automatically on 2005-07-01 unless it gains parliamentary confirmation. The question of product patents for drugs, apparently without any of the flexibilities made allowable under the WTO Doha round, has raised particular widespread concern, especially among the Left and Communist parties, the partners of Nath's Congress party in the governing coalition. The issues are therefore still very much up for grabs; discussion of them in the Indian parliament is resuming in March 2005.
Proposals for amending the Nath Ordinance and for clarifying the meaning of !TRIPs so as to clearly exclude software patents and lead the Indian Patent Office back onto a healthy course have been made:
News, Chronology, Media Reports
2005-12-27 IN Sify.com: Patents Bill to benefit software cos (Software per se was excluded; we felt this meant if software has technical character, it can be patented, but patent office practice was not uniform; this called for a clarification, -> Nath0412En)
2005-01-01 IN New Kerala: India adopts 'embedded software' patents (-> Nath0412En)
2004-12-29 IN Law.com/AP: Facing WTO Deadline, India Struggles With Patent Reform (good for procedural overview)
2004-12-27 IN Slashdot: India Quietly Introduces Software Patents
2004-12-27 IN Rediff.com: Ordinance kicks in product patents regime
2004-12-25 IN Business Standard: Patents edict likely next week