The patent office has published a draft practice manual at http://patentoffice.nic.in/ipr/patent/manual.htm and called for suggestions:

<quote> MANUAL OF PATENT PRACTICE & PROCEDURE - PATENT OFFICE, INDIA (2005) Last Date of Submission of Suggestions extended upto 20th August 2005 </quote>

Though TRIPS clearly says "Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention", and the Patents Act also excludes computer programs from patentability, the Patent Office, on the strength of many US cases, has tried to classify computer programs and has attempted to make a few exceptions. Computer programs cannot be patented as part of any invention, as much as any mathematics involved in an invention cannot be patented. The draft manual has been published at the above site, and please send your feedback so that we may address the issues involved.

A few quotes from the Draft Manual: <quote1> 3(K) a mathematical or business method or a computer program perse or algorithms. computer program product is claimed as "A computer program product in computer readable medium", "A computer-readable storage medium having a program recorded thereon", etc. In such cases the claims are treated as relating to software perse, irrespective of the medium of its storage and are not held patentable.

Examples in respect of other categories of subject matter are Scheme or method of bookkeeping. Business method in the field of accounting. Method of tax collection. A contents display method for displaying contents on a screen, A method for controlling an information processing apparatus, for communicating via the Internet with an external apparatus, A method for transmitting data across an open communication channel on a wireless device that selectively opens and closes a communication channel to a wireless network, and each wireless device including a computer platform and including a plurality of device resources that selectively utilizes a communication channel to communicate with other devices across the network

All the above methods though utilise computer programs for its operation, are not computer programs as such and hence allowable

On the other hand, A method of executing a computer program, in which at least part of the copy of the program available for execution is analysed to determine whether or not any change has been made thereto, and in the event that a change is detected, a further copy of the program is retrieved and caused to be executed instead of the first copy, A method for generating a new computer program using a software development tool, These are the programs solely intellectual in its context and hence not allowable. The Guidelines for examination of Computer-related inventions are given in Annexure 2 <\quote1>

The examples used to justify patentability for some of the kinds of computer programs, is very vague and was very difficult for me to follow. Could someone please explain what it means?

<quote 2> 9.CONCLUSION

The statute excludes from patentability the software per se. The inventions relating to the application of the computer program or software is held patentable under the Indian Patent Act, 1970 when claimed in combination of hardware and software components of a computer which provides a "technical advancement " over the prior art. It is necessary for the applicant to describe the "technical contribution" to the prior art when the invention involves software. The technical problem, which needs to be solved by the invention, should be sufficiently described as to how the hardware is controlled by the software to overcome the previously described problem. The "technical character" of the invention should be brought out clearly in the claims. </quote2> TRIPS is conveniently forgotten, and heavy reliance has been made upon US decisions that have no application to India. IMO, US should change its patent practice to fulfill its TRIPS obligations and any illegal practices in the US that are contrary to TRIPS cannot be cited as examples here in India. Besides, the manual gives the following example: <quote> EXAMPLE (1) If one has invented a new kind of spray bottle patents may be granted for - . The bottle itself (a product) · A chemical in the plastic (chemical composition) · The spraying mechanism (an apparatus) · How you extruded the plastic (a process) </quote>

I suppose, if the contents of the spray bottle happened to be water, the patent office would not patent water along with the new invention. If we can see why water is not patentable along with the sprayer, then there should be no difficulty in seeing that novel computer related hardware inventions could be easily patented, excluding any computer programs it may use. The computer programs the invention uses would be "protected" by copyright law, but never fall within the scope of the patent.

Please comment. Let us please take up the issue as soon as possible.

Regards, Ramanraj.