Rebentisch arebenti@web.de wrote to in-help@ffii.org pointing to the following article:

http://www.mondaq.com/i_article.asp_Q_articleid_E_36364 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 follows:

"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 processes.

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 Act.

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. __