Patentability of Software: Issues to be concerned
Mohammad Yusuf Ali
With the ever increasing software and the associated economic prospects, there have been occurring significant changes in the relevant legal arena. Patentability of computer program or software has already emerged as an issue. In fact, USA and the European patent office granted patent for software while LDCs are not ready to even grant existing copyright on software. Once software patent is granted, the LDCs with their poor technological base, are likely to be suffered emanating from linked issues like higher cost, rigidity of patent system, ambivalence, restriction on free use of brain etc. This is an attempt to find out the possible repercussion of software patent and the legal ambiguity inherent in the concept.
Let us define 'Computer Program' or software (used synonymously) first. Generally, computer program means a set of instructions applied to set a computer in action to perform a particular task. As per section 2(10) of the Copyright Act, 2000(In vogue in Bangladesh), Computer Program means a set of instructions expressed in words, codes, schemes or in any other form, including machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Having defined computer software we can have a look at the legal status of that. As the instructions in software are expressed in words, codes, schemes etc., it gets copyright protection as literary work. Section 2(46) of copyright Act, 2000; article 4 of WIPO Copyright Treaty (WCT); article 10 of TRIPS agreement, 1995- all treats software as literary work worthy of getting copyright protection.
However, It is evident that software comprises both source code and object code. The instructions in software are initially expressed as source code-lines of instructions in a computer language. To make it directly executable by the computer it has to be complied into Object code-machine readable instructions. So, computer program is not all about literary expression, it has some method also which make it machine readable. Generally it is suggested that as object code is the direct result of source code, its legal status must not be independent of that. While other suggests that there are some ideas (non literal, object code) in software that is not expressed in literature. As copyright protection does not extend to unexpressed ideas, it should come under patent protection which is available in case of product and process involving novelty, inventive step and industrial applicability. But current legal atmosphere discourages patentability of software as it has shortcomings and issues to be concerned. let us consider some points in this regard.
Firstly, Obtaining copyright is much easier than obtaining patent. Only fixing a work in a tangible form is enough to invoke copyright protection while a more formalized procedure is to be followed for obtaining patent protection. An application for patent is to undergo a number of tests when only the inscription of © is enough for copyright protection. The formal and lengthy procedure patent is also costly and may precipitate law suits as it involves a lot of claim, counter claim giving rise to investigation and interpretation. Surely, it will result in higher cost of software. After the year 2013, the exemption that LDCs are enjoying in this regard is to be withdrawn. On top of it if patent is granted the situation will be worsened.
Secondly, the dual character of software discards the notion of software patent. Almost all the works in a computer program is literary in nature and the ongoing trend is to attribute copyright protection. The international treaties do not really cover the issue of patentability of computer software. Rule 39.1 of the Patent Co-operation Treaty (PCT), the closest one in this regard, states: “No international searching authority shall be required to search an international application if, and to the extent to which, its subject matter is any of the following:…..(vi) computer programs to the extent that the international searching authority is not equipped to search prior art concerning such programs”. It indicates that the international authority is not prepared to grant such patent. So, the concept of software patent is not flawless.
Thirdly, there is dichotomy in idea and expression to the effect that no copyright exists in abstract ideas. Infringement of copyright arises if one really reproduces or makes unauthorized use of software. Hence, up gradation of using the current one does not constitute the infringement in this case. But, in case of patented software the situation would be reverse. Patents, even could restrain the free use of brain power. Suppose, a situation arises which demand software to be developed to diagnose a disease. In so doing, the potential researchers would not go for checking if there has been any related invention so that infringement might not occur. Instead, he will devote himself to prepare the program. It is only then, when they are sued, that they find out someone has already made a solution. If inventors are apprehended with suits, then how can they use their brain freely?
Fourthly, granting a patent for a period of 20 years seems ridiculous at an age when technologies are rapidly changing. Even within a few months a generation of technology is becoming obsolete. Ultimately the earlier one will bear little or no significance. Again, at a time when open source software is available, patenting of software may bring sad result. It may be argued that open source software is sub-standard, but things are changing rapidly.
Last but not the least, many complicated diseases and environmental issues are to be addressed through software driven process. Once the patent on software is in vogue, the whole process shall see a steeply rise in costs having repercussion on the health and environment of the developing and climatically endangered countries.
To conclude it can be well said that patenting of computer program involves a lot of issues to be concerned. Hence any initiative in this regard, both national and international, should be scrutinized, studied carefully and addressed according to the findings.
The writer is Assistant Director (Assistant secretary) BPATC, Savar, Dhaka.