Legal Aspects of Software Patenting

…..Comes under copyrights• According to the Copyright Act, a computer program is 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 results”.

 The essential elements of a computer program are:

 1. It is a set of instructions expressed in:

• a. words, b. codes,

• c. schemes or

• d. in any other form, including a machine readable medium.

•  2. capable of causing a computer to: a. perform a particular task or b. achieve a particular results.

• Computer software is “computer program” within the meaning of the Copyright Act. Computer programs are included in the definition of literary work under the Copyright Act.

Contd…

• Softwares, per se, are intangibles and not protected by patents but are protected by copyrights as applicable to literary and aesthetic works. A computer program is therefore dealt with a literary work and the law and practice in relation to literary works will apply to computer programs.

• Mathematical algorithm or computer programs are not held as inventions because they merely describe an abstract idea. They merely solve a mathematical problem and not a practical application or idea. They are considered mental acts as any professional could do with requisite skills.

Not patentable….• Computer Program’s / algorithms are NOT patentable as per the

Patents Act 1970, section 3(k)

• The Manual (2011) says that

• Algorithms in all forms including but not limited to, a set of rules or procedures or any sequence of steps or any method expressed by way of a finite list of defined instructions, whether for solving a problem or otherwise, and whether employing a logical, arithmetical or computational method, recursive or otherwise, are excluded from patentability.

Contd….

A computer program Can be reproduced in any material form including the storing of it in any medium by electronic means,

For eg.,Floppy's…( obsolete)CD’s…DVD’s….USB’s etc….

Contd…

• But all of these storage mediums are not patentable as such due to lack of constructional features / lack of technical features……..

Contd…

Some typical software content which are NOT patentable :•Methods implemented by algorithms /software products •Editing functions, user-interface features, compiling techniques , databases..•OS functions •Program algorithms •Menu arrangements •Display presentations/arrangements •Program language translations

Then…how?

• Patent law protects the technical idea underlying the invention, i.e. the functional elements wherein copyright protects the form in which the idea is expressed, i.e. originality of expression but not the underlying idea or concept or function

What can be protected..?

• The technicality / functionality of the algorithm / program can be protected , if the same is claimed in method steps.., NOT THE SOURCE CODES per-se….

• By bringing out the technical feature of the program in claims, which may solve any technical problem ( in clear method steps), in co-ordination / collaboration with constructional features (or) by projecting ( in claims) by what constructional features the claimed method is implemented

• The technical solution solved has to be novel and inventive

No constructional features….

• Basic concept of a software is its functionality and NOT anything constructive

• Hence ONLY method claims and NOT any system / apparatus / device claim

Exceptions….

• System claims maybe allowed when the technical functions are performed in co-ordination with new or novel hardware which may result in a technical solution

• In this case the hardware has to be supported with description / illustrations. Else…NOT allowable and one application claim maybe allowed

Examples…( maybe derived from software..but method..),Eg-1

CLAIM

A method of coupon based uplink scheduling of services associated with a radio bearer in a wireless communication system comprising steps of

•generating a grant coupon for each of the services associated with a radio bearer / receiver , based on pre-defined service criteria, wherein the predefined service criteria is priority, bit rate and periodicity of services associated with said each of the services;

and

•periodically issuing the generated grant coupon by the transmitter ,to the user equipment (UE) so that the UE performs uplink scheduling for said each of the services based on the grant coupon associated with said each of the services.

Contd… Eg-2

• ClaimA method of classifying morphology using a morphology classifier at the location of a UE (user

equipment) , in order to assist the UE in efficiently performing position location operations, the method comprising the steps of  

a) receiving a first set of data measurements from the UE at a receiver , wherein the first set of data measurements are obtained by measuring a first set of signals received in said UE from RF (radio frequency) signal sources within range of said UE, to provide a first set of data measurements;

b) responsive to said first set of data measurements, classifying a user's first morphology using the morphology classifier to form a user's first morphology classification;

 c) determining a level of confidence in user's first morphology classification; and

• responsive to said user's first morphology classification and said level of confidence, the transmitter transmitting position assistance information to the UE, wherein the position assistance information comprises:……………..

• ……………………………(method steps)  

What NOT allowable….(Eg 1)

• Claim• A method of detecting vulnerabilities in source code comprising the steps

of analyzing variables in the source code and creating models therefrom in which each model specifies pre-determined characteristics about each variable

using the variable models to create models of arguments to routine calls in the source code andusing the argument models in conjunction with pre-specified criteria for the corresponding routine calls to determine whether the routine calls possess vulnerabilities as a consequence of the arguments and known routine behavior.

Eg -2

• Claim• A method comprising the steps of

receiving, at each of a plurality of logical replicas, a request from a client, wherein:each said logical replica is configured for exclusive association with one said client;each said logical replica includes a queue; and the request is for accessing one of a plurality of resources; and

when a particular said logical replica is exclusively associated with another said client, storing the request in the queue of the particular said logical replica.

Eg - 3

• Claim• A method for dynamically calculating execution time

associated with a print job, the method comprising the steps of:

receiving a print job from a network to be printed;

determining type of print job to be printed by a printer

calculating total time required for printing the print job based on characteristics of the printer and type of the print job; and

displaying the total time required for printing the print job on a display of the printer.

System—Not Patentable…Claim

An information managing system which comprises;

•a) a multiprocessor,

•b) a system memory coupled to the processing unit,

• c) a System Bus (23);

•d) local area network (51);

•e) remote computer ;

•f) video adapter and monitor and

•g) a software architecture including routines, programs, objects, components, data structures that perform particular task or implement particular abstract data types characterized in that persistence of the storing of the specification in a data base system could be used by others at any other point in time.

Module..Not Patentable…

• CLAIM

• A service module for servicing contact center work items corresponding to contacts incoming to a call center via a SIP-based work item presence server that embodies an

Agent Work Awareness Algorithm (AWAA) , involving (a) the contact center , which includes at least one processor-based device,

maintaining a plurality of work item containers, each work item container being associated with a respective work item for servicing by a resource (168), a first work item container comprises one or more of the following types of information respecting the first work item: contacting customer identity, customer type, work item intent or purpose, customer personal information, customer transaction history, work item browser history, customer order details, customer contact mode, timestamp, work item priority, expected wait time, actual wait time, predicted wait time, identification of at least one other switch location having resources that may be able to receive the waiting work item, a Universal Resource Locator or URL associated with the work item, and a pointer to the current location of the contact;

when a state of a selected work item container changes, determining a set of AWAA agent entities that subscribed to be notified of a state change in the selected work item and/or corresponding work item container; and

(b) notifying each of the members of the set of AWAA agent entities of the state change, wherein a notification includes one or more of the types of information respecting the first work item, the notification used by the resource to allow the resource 

Processor---Not allowable

• Claim• An image processing device, comprising:

memory for storing a three-dimensional data set of an object of interest;

an image processor for

performing an interactive visualization of the three-dimensional data set, wherein the interactive visualization allows for an interactive input, wherein the image processor is adapted for performing the following operation:

loading the three-dimensional set;

varying a rendering method in an image during the interactive input; wherein the variation of the rendering method causes a non-uniform resolution of the image; and wherein the image is determined on the basis of the three- dimensional data set: and wherein, if there is an interactive input, the rendering method is a pre-scan mode having a resolution less than a resolution of a full-scan mode; and wherein, if there is no interactive input, the rendering method is in the full-scan mode.

Application claim

• An transmitter / receiver capable of performing / executing the method claimed in any of the preceding claims.

• (Worded in an apt way which will and shall relate to the method claimed previously)..

Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright.

Facilities exist for having the work registered in the Register of Copyrights maintained in the Copyright Office of the Department of Education.

The entries made in the Register of Copyrights serve as prima-facie evidence in the court of law.

The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located atCopyright Division.Department of Higher EducationMinistry of Human Resource Development 4th Floor, Jeevan Deep Building Parliament Street,NewDelhi

(Additional Information)………REGISTRATION OF COPYRIGHTS

Procedure for registration of work under Copyright Act,1957