The Hindu Business Line : Embedded software-related clause omitted

IN the wake of the change in the Government stance on patenting of embedded software, the software industry feels that the omission of the clause relating to patenting of software-related inventions in the recently-passed Patents (Amendment) Bill, 2005 may impact high-end research and development work being done in India and stifle innovation by small and medium companies.

Software-related inventions pertain to embedded software, which is a combination of hardware, microcode, drivers, an operating system, and an application that delivers functionality within traditional non-computing devices (devices other than computers and servers).

"There are many SME companies operating in embedded software space in India. They develop software embedded in various devices such as camera phone, and MP3 players amongst other devices, and get paid a royalty on the number of units sold. These activities spur innovation in India and also lead to the growth of the hardware industry," the Nasscom Vice-President, Mr Sunil Mehta, said.

"This latest move may force Indian enterprises to protect their intellectual property overseas at a higher cost," Mr Mehta said adding it could also impact the R&D work done in India.

The Patents Ordinance, 2004 laid out that a computer programme per se — other than its technical application to industry or a combination with hardware — would not be patentable.

Subsequently, the Patents Amendment Bill, 2005, omitted the clarification relating to patenting of software-related inventions introduced by the Ordinance. The clarification was objected to on the ground that this may give rise to monopoly of multinationals.

This means that while the Ordinance allowed patenting of any kind of software used in hardware (embedded software), the recent amendment has dropped the embedded software clause.

Currently, as many as 70-80 companies in India operate in the embedded software market, and the market itself is pegged at about $2 billion , Mr Mehta said.

Besides companies such as Sasken, global companies such as Cisco, Lucent, Toshiba and Nokia also carry on hardware designing work in the country.

Our Kolkata Bureau reports: A senior official of the patent headquarters in Kolkata clarified that the Ordinance came into effect from January 1, 2005 and since then, not a single patent in any field - software, engineering or pharmaceuticals - had been granted.

Stating that a copy of the amended Bill in question had not reached Kolkata yet, the he said, "A patent can be granted only after the expiry of three months from the date of filing of the patent application.

Three months have not passed since the Ordinance came into effect. As such, no patent has been granted during the period," he said.

The source was emphatic that the question of reversing patents that have already been granted before January 1, 2005 "simply does not arise."

As regards the granting of patents to pending applications that have already been filed, they will be governed by the amended Bill, which awaits the assent of the President of India.

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