[Ilugc] Fwd: FSF-India response to the Patents
(Amendments) Ordinance, 2004
ramanraj.k at gmail.com
Fri Mar 4 19:07:00 IST 2005
Shiv, thanks for your comments. Before the amendment, Section 3(k) of
the Patents Act, 1970, falling under "inventions not patentable", stood
"3(k) a mathematical or business method or a computer program per se or
It should be left alone in peace.
>>Please confine this thread to the amendments proposed to
>>Section 3(k) *only*, which is of immediate interest to the FSF India.
>> "3. In section 3 of the principal Act, (a) in clause (d), for the
>> words new use , the words mere new use shall be substituted; (b)
>> for clause (k), the following clauses shall be substituted,
>> (k) a computer programme per se other than its technical
>> application to industry or a combination with hardware;
>> (ka) a mathematical method or a business method or algorithms;"
>1) Software already has copyright protection, and in addition,
>closed-source software also has trade-secret protection. It definitely
>doesn't need patent protection in addition.
Correct. TRIPS in fact obliges the member states, India, US and all the
others there, to the do the following, which are very clear and
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne
Convention (1971) and the Appendix thereto. However, Members shall not
have rights or obligations under this Agreement in respect of the rights
conferred under Article 6b is of that Convention or of the rights
2. Copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such.
Article 10 Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine readable
or other form, which by reason of the selection or arrangement of their
contents constitute intellectual creations shall be protected as such.
Such protection, which shall not extend to the data or material itself,
shall be without prejudice to any copyright subsisting in the data or
The amendment seriously goes against the grain of the above Articles.
The mischief, as though the amedment is required to cover "embedded
software", is apparently done by misinterpreting Article 27 of TRIPS,
dealing with "Patentable Subject Matter" which begins as follows: "1.
... patents shall be available for any inventions, whether products or
processes, in all fields of technology, provided that they are new,
involve an inventive step and are capable of industrial application..."
It is meaningless to justify patents for "embedded software" on the
basis of Article 27, and this should explain the source for the
mumbo-jumbo below :
>2) This "application to industry" phrase is mumbo-jumbo. Every single
>piece of software is applicable to industry - effectively, the phrase
>provides a general catch-all exemption.
>3) The "combination with hardware" phrase is even more mumbo-jumbo. All
>software functions *only* in combination with hardware. How else are you
>going to use the program, hand-simulate it with paper-and-pencil in a
>computer science class? Another general catch-all exemption.
It would be clear that TRIPS plainly prescribes copyrights for computer
programs, and the above mumbo-jumbo is merely a fanciful invention ;)
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