IP-IT POLICY FOR TECHNOLOGY ENABLED COMPANIES

IP-IT POLICY FOR TECHNOLOGY ENABLED COMPANIES IN INDIA: HOW FAR ENFORCEABLE? AND BEST PRACTICES

Need for an IT -IP Policy

While running a small business we need plenty of time for personnel management. Those things range from client meetings to project completion. The best possible solution you have is to engage employees to handle each segment of work independently. Companies adopt this technique to carryout their tasks unless or until it is evident that a major problem exist. For that reason it is necessary to give the employees of a technology enabled company a feeling of ownership and autonomy towards the institution they are employed with. In order to act accordingly the employees need to know the rules and regulations of the company.

Typically, a company has many rules and regulations in relation to working time; leave sanctioning, health benefits etc. But with the coming of globalization and research and technology growth within the country and abroad it is highly recommended to have a well planned company policy that covers company's Intellectual property rights and Information technology.

Every company, small or large, within or outside the country that uses computers should have a written policy to enlighten its employees and individuals engaged with its business on computer and Internet usage. Intellectual Property of a company is its intangible knowledge generated by research and technology using the company's resources which needs to be protected from commercial exploitation. IP is an outcome of intellectual output from the unique research and industrial consulting of the company which is an exclusive product to be protected under a well crafted IP-IT policy.

Indian IT Industry

Indian software Industry had been able to perform so well in the global competition, as compared to other industries, going from a mere US $150 million in 1991-92 to a staggering US $ 5.7 billion (including over $4 billion worth of software exports) in 1999-2000.  Since 1991 the annual growth rate of India’s software exports has been consistently over 50 percent. Presently, Indian companies export software and services to nearly 95 countries around the world.  This aspect throws light into the necessity of a comprehensive and effective IT -IP policy for IT companies in India.

Information Technology Act 2000

In India, the Information Technology Act of 2000 is considered as the master legislation in the area of information technology that provides regulations for the use of computers, computer networks, computer systems, electronic data and information, its development and usage. The legislation has provided legality for the use of electronic contracts and electronic formats along with together with other aspects such as electronic authentication, digital signatures, cyber crimes and liability of network service providers. As the use of IT and IT related companies increased tremendously, crimes related to the use of those technology also increased.  

Cyber crimes

A cyber crime can occur when an unlawful act has been committed by an individual by using a computer as a tool or a target or as both. Computers can be used as a weapon or to attack other computers. Some of the illegal activities in which criminal misuse of information technology includes are unauthorized access and hacking, Trojan attack, Email and IRC related crimes, denial of service attacks etc. In India Cyber Laws or Internet Laws regulate these activities. In recent times we have heard lot of cyber crimes being done by professionals by using computers and electronic gadgets as a media.

Considering the present scenario in cyber crimes it has become highly essential to provide adequate protection to entities like IT company's and financial institution's database. Government, realizing the inadequacy of the existing IT Act had made different proposals to amend the existing Act and finally Information Technology Amendment Bill of 2008 was passed by both the houses of the parliament. The Act had also considered computer related privacy issues and protection of stored data. The introduction of "The Personal Data Protection Bill" in 2006 has also provided regulations for protection of personal information.

Companies and Contract Laws

Indian companies mostly rely on Contract Laws as a useful tool to protect their information and Intellectual property rights. Today's corporate companies have to deal with several similar companies and clients, their agents including partners in the course of their business endeavors. Most important is to deal with their employees. It is essential to have an IT -IP Policy that can be followed by each entity or personnel who deals with the Institution. The company's IT - IP Policy shall be made in accordance with the existing laws of our country. Contracts and agreements such as Non-Disclosure Agreements, Anti-circumvention Agreements, user license agreements, and referral partner agreements are some of the few types of agreements which are basically entered into by companies while doing their business.

Breach of contract and breach of confidentiality can be evoked as a major ground while dealing with an infringement of any such agreements under Contract Laws. An employee shall be made aware of the importance of an employment contract along with the existence of an IP-IT policy and nondisclosure and confidentiality clauses while entering into a contract with the employer company. These agreements and understanding between the employer and an employee will cater the smooth functioning of an IT firm or a corporate company in a most efficient manner.

Major Sections in IT Act 2000 and its Sanctions

Section 43 of the IT Act deals with unauthorized access to computers including downloading, copying of protected data etc imposing a punishment up to one crore. Section 65 deals with protection of computer source codes. This section imposes imprisonment or fine which may extend to 2 lakhs.  Section 66 provides protection against hacking. The punishment involves imprisonment of three years or a fine up to two lakh or both. Section 70 deals with the protection of data in a protected system. A protected system shall be any computer network or system which a government by official gazette declared as protected. The punishment shall be imprisonment which may extend to 10 years and fine. Section 72 safeguards privacy and deals with breach of confidentiality of the data. Punishment extends to two years imprisonment or fine extending to one lakh rupees or both.

The Act has brought tremendous changes in the existing cyber law of the county yet there exist shortfalls which actually give a way for cyber criminals to smear up electronic trails and evidence by providing them bail as a matter of right. Majority of the crimes under the Act are bailable offenses which can ultimately turn our country to a cyber crime paradise of the world.  

Best Practices:

Considering all these aspects Indian IT companies shall provide due importance to protect their Information Technology resources and Intellectual Property rights. It is advisable to prepare a comprehensive IT-IP policy that covers all aspects related to usage of IT resources of the company, as well as to protect its Intellectual Property rights.  The policy shall be prepared in accordance with the Information Technology Act, contract laws and law of confidence and common law practices.  

Submitted by

Vinitha Prasannan

Sources:

http://www.cyberlawsindia.net/

 http://www.indianembassy.org/indiainfo/india_it.htm

http://www.cyberlaws.net/itamendments/index1.htm

Right of Children to Free and Compulsory Education: An Indian Perspective

Independent India paved way to a new epoch for children in the country. By the enactment of Indian Constitution in the year 1950, provisions dealing with the development and protection of children in India came into existence. These provisions are included both in Part III and Part IV of the Constitution pertaining to ‘Fundamental Rights’ and ‘Directive Principles of State Policy’.[1]

Important Constitutional Provisions that may have direct impact on children include:

Fundamental Rights

·        Article 14: … shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

·        Article 15: … shall not discriminate against any citizen… (3) Nothing in this article shall prevent the State from making special provision for women and children. (4) Nothing … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

·        Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

·        Article 21 A: … shall provide free and compulsory education to all children of the age of six to fourteen years…

·        Article 23: Traffic in human beings and beggar and other similar forms of forced labor are prohibited…

·        Article 24: No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Directive Principles of State Policy

·        Article 39: … (e) … the tender age of children are not abused… and not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood… protected against exploitation and against moral and material abandonment.

·        Article 45: …provide early childhood care and education for all children until they complete the age of six years.

·        Article 46: …shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,…

·        Article 47: …raising of the level of nutrition and the standard of living of its people and the improvement of public health…

·        Article 51A: … (k) … parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

In India, the constitutional provisions are guaranteed by the Fundamental Rights and Directive Principles of State Policy. Needless to say, India is one of the largest democracies in the world and it has a federal system of government and the States have their own government elected democratically. The Seventh Schedule of the Indian Constitution deals with the respective jurisdiction of the Central and State Governments over various subjects under the Union, State and Concurrent Lists. The survival, development and protection of children fall either in the Concurrent or in the State List. [2]

Apart from that various development programmes for children were carried out within the country under the Five-Year Plans in which some were wholly undertaken by the Central Government or the State Government and some by the co-operation of both.

In spite of these provisions, in India, children are exposed to more vulnerability where violations of their protected rights are still prominent in the society as a whole. Children are easily opened to various abusive activities like child labor, child trafficking and commercial sexual exploitation. According to 2001 Census, 12.6 million of Indian children are indulged in hazardous employment.[3] This throws light to the fact that, on a global standpoint, the Country has the most number of child laborers below 14 years. [4]

While one of the main reasons for increased child labor in India is considered to be poverty, there are lots of other underlying factors to be determined which includes social and sexual discrimination, awareness of parents to educate children, quality of education provided and understanding the value of education etc. Some states in India, like Bihar, Mizoram, Rajasthan and Uttar Pradesh has 60% or more drop out among girls prior to completing their basic five year primary education.[5]

It was only recently in the year 2002, by the 86^th Constitutional amendment, India included right to education as a fundamental right under the Constitution.[6]

Right to Education Act 2009

It took more than 6 decades after Independence for India to clear the RTE Bill that is aimed to provide free and compulsory education for her young citizens. As all rights in Chapter 4 are not enforceable, this was made enforceable by incorporating Chapter 3 of the Constitution as Article 21. As per the 86th Constitution Amendment Act that added Article 21A, every child between 6 to 14 years of age has the right to free and compulsory education in India. This amendment is being given effect by the Right to Education Act [RTE] by the parliament of India on August 4, 2009. [7]

Key features of the Bill

According to the Act, government schools shall be administered by school management committees and these schools shall offer free education to every single child. Apart from that, private management schools shall admit a minimum of 25% children free of costs. In spite of this aspect, a National Commission of Elementary Education (NCPCR) shall come into existence in order to supervise different aspect of elementary education in India. Some of the important provisions of the Bill include:

·        25% reservation in private schools for disadvantaged children from the neighborhood, at the entry level; no seats shall be left vacant.

·        Reimbursement of expenditure incurred by schools by the Government;

·        There shall be no donation or capitation fee on admission;

·        8 years of elementary education near their neighborhood;[8]

·        Education for disabled children also.

·        Schools should have adequate infrastructure

·        Stringent criterion for teacher’s qualification

·        No interviews shall be conducted during the selection process for the child or parents.

·        Establishment of primary schools within walking distance of one km of the neighborhood.

·        No segregation in unaided and public schools for disadvantage children.

·        Legally bound duty of Central and State governments to ensure free and compulsory education

·        Free helpline by NCPCR to register complaints will be set up

The Bill also precludes certain aspects like:

·        Physical punishment to children;

·        Expulsion or detention of a child and;

·        Development of teachers for non-educational purposes;

·        Functioning of a school without recognition. [This shall result in penal action]

Criticism

As often addressed by critics the age stipulation made mentioned in the bill depicts about children above six years and below 14 years. It explicitly disregards the application of the Act to children below six years and above 14 years. Furthermore, government had failed to address associated issues like scarcity of educational staff, limitations of infrastructure, proficiency of teaching staff in the present schools etc.

Conclusion

To conclude, India has a long way to go in the field of education to children and weaker society than the rest of the countries in the world. On an analysis of the existing scenario, even though it took a far too long time frame, with the introduction of the RTE Act, India is aiming a revolutionary change in the existing educational system within the country which is highly appreciable though access to primary school still remains subtle even today.

   

Submitted by

Vinitha Prasannan

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[1] Children in India and their Rights by Dr. Savita Bhakhry

[2] Children in India and their Rights by Dr. Savita Bhakhry

[3] http://www.unicef.org/india/children.html

[4] Ibid

[5] Ibid

[6] http://www.indg.in/primary-education/policiesandschemes/right-to-education-bill

[7] http://www.indg.in/primary-education/policiesandschemes/right-to-education-bill

[8] http://www.icbse.com/2010/education-rte-act-2009/

SPAM: Time for legislation in India

SPAM, a few years back was merely considered a nuisance but now it is a major cause of concern among many. Junk mail has become a major problem,studies have indicated it makes up for as much as 50% to 70% of all email. This is up from 7% in 2001.Indian companies are spending millions of dollars on  anti spam e mail technologies in an effort to minimize the impact of spam[1].

$ 8.9 billion is the loss incurred by US corporations in the year 2002 solely due to spamming[2] . Spam[3] is defined as Unsolicited Bulk E-Mail (UBE) or Unsolicited Commercial E-Mail (UCE), often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups; junk e-mail .In simple terms “spam” mails are e-mail’s sent in bulk and most of such mails are advertisements. The main reason that spam has achieved such a devilish status is because it is used for advertising products, get-rich-quick schemes and other similar fraudulent schemes. Spam is trouble maker not only for the recipients of the message but it also causes hardship on the Internet system and Internet service providers as the costs, such as transmission costs etc, are borne by the carriers and recipients of the messages. Internet usage is at a rise in India, and so is the need for a legislation governing SPAM.

Negative Impact of Spam

The negative impacts of spam are not few but many and these are:

1.      The messages so sent as spam are deceitful and are either partly or are completely fraudulent.

2.      The resources which do not belong to spammers are used by them. When spam is sent through intermediate systems so as to avoid the blocks that many systems have placed, the intermediate systems networks and the disks get laden with unwanted spam.

3.      The content of spam is another issue of concern. Spam mails are usually mails promoting dubious ventures and messages which contain sexually descriptive material.

4.      Spam also causes a significant proportion of e-mail traffic .It is so because spam consumes large amount of network bandwidth, memory, storage space, and other resources. The Internet users and system administrators spend a lot of time in reading, deleting, filtering, and blocking spam.

5.      The spammers also tap into Simple Mail Transfer Protocol[4] (SMTP) Servers and direct them to send copies of a message to a long list of recipients.

Dealing with Spam

Technical mechanisms are used to deal with the menace of spam. These mechanisms are usually implemented by individual Internet users, ISP's and other destination operators, as well as by various third parties, some of which specialize in battling spam and a few are [5]

1.      End User Filtering and Collaborative Filtering[6]

End User filtering entails the recipient simply ignoring unwanted messages while collaborative filtering consists of filtering done by Internet Service Providers (ISP) and proxy filtering services like Brightmail.

2.      Blocking[7]

Blocking involves enabling destination operators to refuse delivery of spam. Many databases sometimes referred to as blacklists or "blackhole lists," list Internet hosts frequented by spammers. Destination operators can use these databases to identify and refuse delivery of selected incoming messages.

3.      Hiding from Spammers[8]

This process involves concealing e-mail addresses by the recipients thus making harder for the spammers.

4.      Opting Out[9]

This procedure involves requesting the spammer to remove the recipient from the mailing list. Of all the measures stated above this is the most ineffective as spammers almost never remove a mail address from their mailing lists.

The technical approaches so being used have not been much successful in eradication of spam and one of the main reason for the same is the inherent openness of the Internet and e-mail protocols. Technical approaches have certain harmful effects on legitimate communications also as blocking e-mail traffic from a spam friendly site often means blocking a great deal of legitimate email[10].

Legal methods

US  ,the European Union and a few other countries have enacted anti-spam legislation. Australia which contributes to about 16% of the total spam in the world has the most stringent spam laws under which spammers may be fined up to $1.1 million a day[11]. Although anti-spam legislations are found all over the world, the methods of combating spam are virtually similar and they are :

1.      Prohibition

2.      Enforcement of Anti-Spam policies

3.      Opt-out clause

4.      Other Statutory Provisions

5.      Enforcement Mechanisms

The number of anti-spam legislations passed all over the world and the penalty given to these spammers are clear evidence of the fact that the International Community has recognized the menace caused by the spam and are ready to take all possible steps to fight it effectively.

India lacks a legislation to govern spam .IT Act of 2000 does not deal with the issue of “spamming” at all. It merely refers to punishment given to a person, who after having secured access to any electronic material without the consent of the person concerned, discloses such electronic material to any other person[12]. Spamming is not considered in the Act[13]. The Delhi High Court acknowledged the absence of appropriate legislation concerning spam in a recent case wherein Tata Sons Ltd and its subsidiary Panatone Finwest Ltd filed a suit against McCoy Infosystems Pvt Ltd for transmission of spam. It was held that in the absence of statutory protection to check spam mails on Internet, the traditional tort law principles of trespass to goods as well as law of nuisance would have to be used[14]. Noted IT expert Mr. Praveen Dalal is of the view that spamming can be treated as violation of privacy under Article 21 of the Constitution and can also be brought under nuisance and trespass under the Indian Penal Code[15].

Conclusion

Internet users are growing in India and so is the number of junk e mail received by people everyday. It is the need of the hour to take all essential measures so that spam does not become a problem of gigantic proportions in India .With the establishment of the Indian arm of the Coalition Against Unsolicited Commercial E-Mails (an International Organization against spam) some efforts are being made to combat the spam menace[16]. But the absence of a legislation in this regard is a serious problem and it needs to be addressed as soon as possible.

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[1]               http://www.spambutcher.com/misc/1.html

[2]               lawspace2.lib.uct.ac.za/dspace/bitstream/2165/.../Lottersberger+2003.pdf

[3]               http://www.answers.com/topic/spam

[4]              SMTP (Simple Mail Transfer Protocol) is a TCP/IP protocol used in sending and receiving e-mail. However, since it is limited in its ability to queue messages at the receiving end, it is usually used with one of two other protocols, POP3 or IMAP, that let the user save messages in a server mailbox and download them periodically from the server. In other words, users typically use a program that uses SMTP for sending e-mail and either POP3 or IMAP for receiving e-mail. On Unix-based systems, sendmail is the most widely-used SMTP server for e-mail. A commercial package, Sendmail, includes a POP3 server. Microsoft Exchange includes an SMTP server and can also be set up to include POP3 support. SMTP usually is implemented to operate over Internet port 25. An alternative to SMTP that is widely used in Europe is X.400. Many mail servers now support Extended Simple Mail Transfer Protocol (ESMTP), which allows multimedia files to be delivered as e-mail.

[5]               citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.64.7023&rep...

[6]               www.cisco.com/web/solutions/.../C11-484492-00_Filtering_wp.pdf -

[7]               www.sans.org/security-resources/vendor.../directories.php?.

[8]               csarven.ca/hiding-email-addresses

[9]              opt-out.cdt.org/

[10]             www.cisco.com/web/about/.../ipj.../anti-spam_efforts.html -

[11]             www.vircom.ch/Can_Laws_Block_Spam.pdf

[12]             www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.htm

[13]             www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.htm

[14]             http://www.legalservicesindia.com/articles/spamli.htm

[15]             http://spicyipindia.blogspot.com/2008/09/tk-spams-and-biopiracy-axil-of-evil.html

[16]             www.cauce.org/

Patenting Computer Related Inventions

Introduction

Patents are exclusive territorial monopoly rights granted to inventors, generally for tangible products or processes in all areas of technology that are new and useful with certain exceptions like, abstract ideas, mathematical algorithms and life forms for a limited period of time. Protection is not granted to computer related inventions but the rise of computer –related technology and the software industry has made it the need of the hour to provide a suitable intellectual property protection in this area. Software was considered as a “mathematical formulae”[1] but with time and by evolution of many cases computer related inventions are now under the subject matter of patentable inventions. In Europe the invention should make a “technical contribution” to the state of art or have a “technical effect”[2] and in the US it is enough if the invention produces a tangible result[3]. It is now generally accepted that pure ‘computer programs, whether in source or object code, shall be protected as literary works’[4]. Copyright protects only “literal expressions” and not the “ideas” behind the computer programmes[5].

United States of America

Title 35 U.S.C.101[6] states that whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any useful improvement thereof may obtain a patent[7]. The law does not expressly prohibit any field of technology from being patentable. The courts had excluded ‘laws of nature, scientific phenomena, and mathematical formulae’ from patentability[8].Till 1970’s software-related inventions were considered as non patentable subject matter as “software was essentially mathematical formulae”[9]. In Diamond v Diehr[10] the US Supreme Court decided that patent cannot be denied for an invention for the only reasons that ‘its claims contained mathematical formulae’[11]. But, it was the landmark decision of the Court of Appeals in the Federal Circuit (CAFC) in the State Street Bank & Trust[12] case, with regard to a US patent claiming a data processing system for implementing a particular investment structure that combines the advantages of economies of scale with the tax benefits of partnership, which held that any computer- related invention is a patentable under law if it produces a useful, concrete and tangible result[13] which enlarged the scope of patentable subject matter. Then, further in re Alappat[14] the court indicated that even where mathematical concept is embodied in a specific machine to produce a useful, concrete and tangible result then the mathematical concept is a subject matter for patent[15].Post State Street Bank and re Alappat patents are issued in the US for computer-related inventions and Business methods whether the invention has a technical character or not provided the invention is novel and produces useful, concrete and tangible result and is within the ambit of statutory subject matter for a patent[16]. A computer programme that is executed in a computer or encoded on a readable medium is patentable in US.

Europe

Art 52(2) of the European Patent Convention (EPC)[17] expressly excludes ’computer related program per se’ and ‘methods of doing business per se’ from patentable subject matter, but, ‘only to the extent to which a European patent application or European patent relates to such subject matter or activities as such’[18].Till late 90’s the European patent office guidelines and the Board of Appeal took a similar and consistent view that, a computer programme claimed by itself or as a record on a carrier is non patentable irrespective of its content’[19]. In T833/91[20], the technical Board of Appeal broadened the scope of patentability, the technical contribution that allows a subject matter to be patentable might lie in:

·         problem underlying the invention,

·         the means constituting the solution, or

·         the effects achieved by the solution of the underlying problem’[21].

Later in three cases, relating to inventions of IBM, the scope of patenting software related patents in Europe was considerably enlarged. All three relates to applications for patent by IBM which claimed for computer programme on a computer-readable medium. European patent Office rejected the applications stating that, since the medium and the program recorded thereon were not technically related the technical character of the computer program could not be derived from the physical character of the storage medium on which it was recorded[22]. The Board of Appeal in its conclusion reasoned that’ technical effect is achieved by the internal functioning of a computer itself under the influence of said programme[23], on the said condition all programmes must be considered as inventions[24], also a computer programme on a computer readable medium has the “potential to produce a technical effect” and hence not excluded from patentability. In another case, the Board of Appeal concluded that all programs when run in a computer are by definition technical[25]. These findings are totally divergent to the decision in SOHEI[26], which stated that normal interactions between a program and a computer could not amount to a technical contribution and it is necessary to show that a new machine was created. There are still divergent views on patentability of computer related inventions in Europe, some people want the computer programme to create a substantial technical contribution, others are interested in removing “computer programmes as such” from the excluded subject matter for a patent. European Parliament is still discussing a draft directive on patentability of computer related inventions. It has not been able to reach a consensus.

India

Patent system in India is governed by the Patents Act 1970[27] (hereinafter 1970 Act). Unlike in US and Europe it was not any existing case laws that brought computer-related inventions under patentable subject matter but rather, it was the Patent Act as amended in 2003 that made the new area of technology a patentable subject matter. The definition of the term ‘invention’[28] itself excluded patents for computer programmes. The 1970 Act was amended in 2002 to increase its compliance with the TRIPs agreement which India had signed in 1994.The amendment of the Act of 1970 changed the definition of ‘invention’[29] and also excluded ‘computer programme per se’ from patentability[30]. It was generally understood that a product embedded with a computer programme producing a ‘technical effect’ and having an inventive step is patentable. The latest amendment brought through an ordinance[31]to bring in major changes in the 1970 Act. Sec. 3 of the Patent Act lists non patentable subject matter and Sec.3 (k) excluded “a mathematical or business method or a computer programme per se or algorithms for being patentable”.  Section 4.11 of the Draft Manual makes an attempt to inform the inventors and potential Patent applicants that while software per se is not patentable, software in combination with hardware can be patented[32].

The Patent Law of India at present does not provide protection to software as software is not a patentable subject-matter in terms of the patent law in India[33]. According to the Draft Patent Manual computer-implemented invention[34] means any invention the performance of which involves the use of computer, computer network or other programmable apparatus or an invention one or more features which are realised wholly or partially by means of a computer programmes. Further, Computer programs[35] are a set of instructions for controlling a sequence of operations of a data processing system. It closely resembles a mathematical method which may be expressed in various forms such as; series of verbal statements, a flowchart, an algorithm or other coded form and may be presented in a form suitable for direct entry into a particular computer, or may require transcription into a different format. Besides, the manual states that computer inventions include:

(1) Method/process

(2) Apparatus/System

(3) Computer program product[36]

If the software can function on hardware then it is patentable as per the Patents Manual. But then is there any software without any application or function? This yardstick of functionality is used with regard to all inventions as no invention can obtain patent until unless it has got some utility. So as per the patent law software per se not patentable but those having technical applicability might get a patent?

Software which is compatible with all forms of hardware would yield better results and software’s which can be used only with regards to certain specific hardware would be more limited in utility. It is unfair to grant patents to these specific customized software’s which give only limited results and not grant patents to software’s which have more general applicability and usage on all forms of hardware.

Conclusion

Only when the patent is granted will that act as an incentive to come out with more inventions, which will then be in public domain and common public can also use the invention. But the absence of such protection can have a severe impact on the innovations and on the whole aspect of growth and development in the IT sector. It is now time that the government takes note of the fact that the IT industry which has contributed significantly towards the growth of the economy is not well protected .An amendment of the Patent Act to the effect is necessary. Software and computer programs should be given the status of patentable subject-matter by amending Section 3(k) of the Act.

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[1] Gottschalk v Benson, 409 US 63(1972)

[2] http://www.epo.org/patents/law/legal-texts/html/epc/1973/e/ma1.html

[3] http://www.law.cornell.edu/patent/patent.overview.html

[4] Art 10.1, TRIPS Agreement

[5] WIPO/IP/BIS/GE/03/07

[6] Supra note 4

[7] http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_101.htm

[8] Mackay Radio & Tel. Co v Radio Corp of Am., 306 US 86,94 (1939); Funk Bros. Seed Co. v Kalo Inoculant Co., 333 US 127,130 (1948)

[9] Gottschalk v Benson, 409 US 63(1972)

[10] 450 U.S. 175 (1981)

[11] Ibid

[12]149 F.3d 1368 (Fed. Cir. 1998)

[13] Supra note 12

[14] 33 F.3d 1526, 31 USPQ2d (BNA) 1545 (1994)

[15] Ibid

[16] Examination Guidelines for Computer-Related Inventions, USPTO

[17] http://www.epo.org/patents/law/legal-texts/html/epc/1973/e/ar52.html

[18] Art 52(3) EPC

[19] T204/93 OJ

[20] http://www.aplf.org/epo-update/

[21] T833/91 OJ

[22] T1173/97 OJ

[23] Supra note 19

[24] Supra note 19

[25] T0931/1995 OJ

[26] http://eupat.ffii.org/papri/epo-t920769/index.en.html

[27] http://www.indianlawcds.com/bareacts/patentsact70.htm

[28] http://www.indianlawcds.com/bareacts/patentsact70p1.htm, Sec 2(j) (j) "invention" means any new and useful-
(i) art, process, method or manner of manufacture;
(ii) machine, apparatus or other article;
(iii) substance produced by manufacture,and includes any new and useful improvement of any of them, and an alleged invention;

[29] Ibid

[30] Sec 3(K) of the Patents Act 1970 as Amended by the Patents ( Amendment) Act, 2002

[31] The Patents Act 1970 as amended by the Patents (Amendment) Ordinance, 2004

[32] http://www.patentoffice.nic.in/ipr/patent/DraftPatent_Manual_2008.pdf

[33] http://ipindia.nic.in/ipr/patent/patact1970-3-99.html

[34] http://www.patentoffice.nic.in/ipr/patent/DraftPatent_Manual_2008.pdf

[35] Ibid

[36] Ibid