Let us first analyze the current scenario in the Indian software industry.  No one can deny the fact that the Patent literacy has been awfully low.  There needs to be a sea-change in the way we have been managing  our intellectual property. Generation of intellectual property, documentation, protection and the financial exploitation should assume a crucial role in the current context.  Enough attention should be paid to the development of skills in reading , filing and exploiting patents.

           The sad part is that, in spite of  a huge software pool the Indian contribution  to the pool of international patents is negligibly low.  Due to the abundant availability  of  good programmers locally,  India is  able to provide software-support to  other countries. But unfortunately, excepting for a couple of cases,  the Indian Software Industry has been working purely on the Application side and hardly any work , worth its name, is done on the System side.  Most of the Indian institutions have focused  on imitative research or reverse engineering only.  It must be inculcated in the mind of everyone that “Protected Knowledge” has a tremendous opportunity to create wealth.  The dictum that “Knowledge is for Knowledge’s sake” is no longer valid.  This attitude may result in our paying for things on which we already have gained the knowledge.   To quote an example from another field,  Exxon and Hoechst hold about 200 out of the 400 patents on a particular area of polymer chemistry.  They sue any new company entering in this field, because the new companies  invariably find it very difficult to avoid the span of the 200 odd patents.  This means a total domination and unchallenged commercial profits for those two major companies.   It was mentioned that our own National Chemical Laboratory (CSIR) faced this exact problem.  This clearly shows that “Simple Knowledge “ can  no longer be considered “Power”.  Only the “Protected Knowledge” is emerging out as the “Real Power”.  How many of the Indian software companies can claim to have developed any product that can be claimed as a milestone in the history of software?  How many of the “Killer” applications belong to the Indian sub-continent?  Indian software companies should come forward and invest in R&D activities immediately.  One of the most important thing to be done is to encourage our people to do innovative research or forward engineering.  They should excel not only by the “Quantity” but also by the “Quality”.  A notorious weakness in several software companies is the lack of proper documentation.  Enforcing a formal  mechanism to document the key research works will smoothen the path to patents.  Implementing the CMM model of Quality Assurance will help in this regard.

           Another major, perhaps the worst, problem is that excepting for a handful of companies others are NOT taking any precautions before the start of any new project.   A good majority of the companies don’t know how to protect their invention; nor do they understand the implications of the patents granted to the competitors.  There are several patentable Indian inventions that have not been patented due to the poor patent literacy.   The new regime has brought in  several goodies  for the original inventor like----Patents are now available for both Process and Products.   Also if an application is filed in Country A and an application is filed in Country B within one year by the same person,  then the application in Country B would be deemed to be filed on the same date as it was filed in Country A. The term of the protection period is increased to 20 years.  
In case of conflicts, the burden of proof would rest on the defendant.  While these points are the real “carrots” for the inventor,  they act as the “sticks” for the competitors.    Hence it would be a good idea for every company to set up an “IPR-Clearance-Division” to deal with the current situation.  This division can analyze the  techno-legal  implications concerned with  the project under consideration. This clearance should be made as important as the Technical Clearance or the Financial Clearance needed for any project. This division can use the latest IT tools like the Internet  to scan the various patent databases and find out the possibility of any IPR infringement or the potential for any new patent.  A proper scan of the patent database can save both time and money.   It was pointed out that the European Industries are wasting about 15 – 20 Billion pounds each year by simply working on areas which have already been IPR protected!!  There is a lot at stake for the patents in India, as indicated by the  constant increase in the number of patents filed by foreigners in India.. It may be possible that the patent rules may be a bit confusing to the normal IT people—whether the invention in hand is patentable / copyrightable, what should be protected etc etc.  This is where the IPR-Clearance-Division can come to help.  If the patent database is browsed,  then the chances are high that one may feel “Oh! This is very simple and I know it earlier”.  But it should be remembered that “Protected Knowledge” alone can win!!  So without systematic analysis nothing should be simply brushed aside as “simple and un-patentable”.  Some of the case studies shown below would illustrate the subtle difference between success and failure.

CASE STUDIES:

A)            There is a simple idea to reduce / avoid the possibility of the illegal tapping of the passwords entered by the users of ATM machines.  As per this the user need not type-in the password.  Instead, he should identify the positions of a particular icon (out of the several dynamically created icons) that “relates” to the password.  The icons are associated with the data in a way that is readily or intuitively discernable by the user. For example, instead of typing digit "5" for the number  “5”  in a password, an icon consisting of  “5”  bowling pins together could appear on a display image (a commensurate number of bowling pins would be grouped in the icon corresponding to digit 0 through 9). A user would intuitively be able to determine that the five grouped bowling pins in said icon corresponds to the number "5" and, in a touch-screen application, for example, would touch that icon in order to input "5."  This invention was granted a patent.

B)            To get a consistent quality of photographic development under different temperature conditions, an algorithm was developed to adjust the duration of development based on the temperature, the developer and the photosensitive material.  The computer running this algorithm controlled the conveyor belt to get the consistent development.  U.S. Patent was awarded to this because  “technical effects”  were produced by the operation of the programs.

C)            In 1990, Wang Laboratories programmed a computer in such a way that an expert could store his knowledge in a hierarchical form from which expert-advice could be obtained.  The claim for a patent on this was rejected on the ground that it was a mere computer program performing a mental act.

D)            A new algorithm for comparing two files for matches ( and differences) was also awarded a patent.
It would be clear that Patents may be available for “technical effects” which may be produced by the operation of programmed computer, but patent will NOT be granted to a computer program by itself.  The UK Patent Law also categorically states that computer program as such is not patentable and the Indian Patent Law is also similar.   Computer program is treated like a literary work---“set of works expressed in words, codes, schemes or any other form including machine readable medium capable of causing the computer to perform a particular task”.  Copyright Law is therefore the main vehicle for the protection of computer programs.  Copyright protects the literal text of the work (including source code and the object code) as well as the non-literal work ( like program sequence & organization, look & feel of the program, command-menu etc). The case studies also show that there is a borderline difference between success or failure of getting a patent.  In borderline cases, it is always better to apply for a patent because, even if the patent is not granted because the invention is more related to a computer program,  then the invention will automatically be protected by copyright law.  Due to doubts if the patent is not applied for then the risk taken is very high, because no patent can be taken once the invention is made public by use or publication.  The copyright protects the program from copying and adaptation like making a BASIC language program which was originally available in COBOL language.   An important point to note is that any program whose only form of existence is the computer’s RAM is not protected by copyright as per the law!!

ACTION PLAN:

1)            It would be a good idea for every company to set up an “IPR-Clearance-Division” 

2)            Innovative research or forward engineering should be encouraged to gain economic gains.

3)            It should be highlighted that only  “Protected Knowledge” is  the “Real Power”

4)            Information got by the analysis of the patent documents should be used to guide more innovations in the right directions.

5)            Liberal investment to be made to enhance the skill-set of the software specialists by conducting periodic professional training.

6)            Systematic documentation process  of the new ideas,  algorithms and inventions should be enforced.

7)            Implementing the CMM model of Quality Assurance  will be of much help.

8)            The  Government  in consultation with the big software companies, CSI,  NASSCOM  etc  can work out  some attractive package of financial incentives for patent holders.

9)            The IT industry should come out of the “Second-Level” syndrome and move towards the development of system software or killer-applications.