The CRI Guidelines, Section 3(k), Software Non-Patentability, AND, My Dilemma Hiding In The Labyrinth!

 

You may be a supporter of OSS, Open Platforms, Trade Secrets, Licenses, or Patents; perspectives differ. When it comes to Algorithms, this is true that they should’ve been covered everywhere under the ambit of Copyrights only, and never under Patents, as Algorithms are after all LITERARY STEPS or Methods written in literary wordings with no technical advancement ‘per se’, but merely an instruction to perform a technical action, which in its original format directly cannot be industrially implemented. I’ve no idea why some contend(ed) to include it under the ambit of Patents. And when the Algorithms are being converted into Coding and implemented as Software, then too, Algorithms, should be covered under Copyrights only, for the reason that once they being coded, their characteristics, language, and way of implementation, format changes. So, when something absolutely gets transmuted from one form or another, then it cannot be considered as original (again, ‘per se’). BUT, there’s massive issue in including Algorithms under the ambit of Copyrights as well. Do you think, an N-Bit encryption, should’ve the term of LIFE + 60 YEARS, further, in the absence of Compulsory License/March In Rights, as stated under the ambit of Patents, for instance S. 84.

So how could an algorithm have a life cycle of Life + 60 years, when such technology won’t even exist after few years, and even if it might exist, let’s say in the case of Software, as most of the Languages were built on the substrata of JAVASCRIPT, then would it be justified, for keeping it for several decades of Monopoly?  WRONG! Under these circumstances, I contended that Algorithms too should be included under the ambit of, if not Patents, then at least, not even under the ambit of Copyrights as well. So here what I introduced my theories earlier where I contended that, you should sometimes look both Patents and Copyrights from the lens of each other, and then maybe, device another act or rule, which should include algorithms, software, under a separate act only, maybe like Design, and let it have the validity of 10 Years, instead of 20 years, or, Life + 60 Years, which to my understanding is Bizarre.      

But where is my Dilemma hiding? It comes down to the Software Part. I’ve been both supporter, and being against for Software Patents in the past and present. Read these of my blogs which I wrote more than a decade back in 2014, and 2012, before reading further ->

Link: https://www.jpranavc.com/2015/01/discovery-regulated-or-opened.html

Link: https://www.jpranavc.com/2012/05/software-patent-mere-discovery-or.html

In which I covered mostly the Software part only. NOW:

Three things are involved in considering Software as Patents:

1.    That it should increase the Efficacy of the processing cycle;

2.    That Efficacy should be related to the Hardware-Software combo (mostly covered under the ambit of Embedded, OR, VLSI level or at the Processing Level etc.)

3.    Enhances computational ability of the System or of the Security Network;

4.    Provide Efficient Storage Management.

Thus, four words -> Efficacy + Hardware-Software Combo + Enhances + Efficient!

The above aspects are mostly related to Software Products when they get associated with its Hardware components of the Invention!

Let us not vanquish Section 3(k) fully because I know, unwarranted Software Patent Applications would be filed (PATENT JUNKS, OR, PATENT TROLLS), to tell the World, that the Applicant(s) have filed a Patent Application, wherein 31 Months period time would be there to file for Examination + 2-3 years additional for processing + if incase of Pre-Grant Oppositions (which is then bound to happen) & additional time for that +  hearing; and this all would  put a load on the SYSTEM Overall.

In one of my previous blogs, I contended that why MS WORD was Patentable, despite being a Software! But as per my opinion, most of the Software Programs should be included under the ambit of a separate law only, until and unless, they prove their efficacy related to device- hardware or as explained above. For instance, there are programs written as device drivers, encryptions, used in the communication systems, that can enhance the efficiency of the Software program.

Thus, I found the answer to my Dilemma hiding inside the Labyrinth. The only solution is to have a separate acts or rules as stated above, amended at the TRIPS, WTO, which would deal with the Software related Patents or Algorithms only. But as the Globalization has Collapsed, then I wonder, and there’s my another Dilemma -> would that be useful? 😊

© Pranav Chaturvedi