Centre for Internet and Society

Agreement on Procurement

pranesh — 2008-12-08T06:08:19Z

On December 6, 2008, at the closing of the third Internet Governance Forum in Hyderabad, India, the Dynamic Coalition on Open Standards (DCOS) released an agreement entitled the "Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards".

Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards

Third Internet Governance Forum (IGF)

Hyderabad, India

6 December 2008

Preamble

The Contracting Parties,

Recalling the World Summit on the Information Society (WSIS) Declaration of Principles which states that "[i]nternational standards aim to create an environment where consumers can access services worldwide regardless of underlying technology,"

Recognizing that standards are increasingly global concerns, involving goods and services that move in international trade across borders,

Aware that current competition and legal remedies may not be enough to solve the inherent tensions that routinely arise in the realm of patents and standards,

Desirous of encouraging procurement policies that require evaluation of multiple, competing products based on open ICT standards in order to ensure a level playing field for vendors, governments and consumers,

Cognizant of the need for procurement policies for software programs that are predicated upon an open standard,

Open Standards

Given the multiplicity of interpretations of the term open standards, for the purpose of this document we endorse as an acceptable definition the position contained in the European Union's draft European Interoperability Framework:

1) The open standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.).
2) The open standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.
3) The intellectual property - i.e. patents possibly present - of (parts of) the open standard is made irrevocably available on a royalty free basis.
4) There are no constraints on the re-use of the standard.

(IDABC EIF v2 draft (http://ec.europa.eu/idabc/en/document/7728))

As noted in the European Interoperability Framework cited above, open standards or technical specifications must allow all interested parties to implement the standards and to compete on quality and price. The goal is to have a competitive and innovative industry, not to protect market shares by raising obstacles to newcomers. Thus, open standards or technical specifications must be possible to implement in software distributed under the most commonly used open source licences, with no limitations arising from IPR associated with the standard in question.

In addition to the above requirements, it is recommended that there should be multiple independent implementations of the standard.

Governments, publicly funded and non-profit institutions agree to implement the following policies.

Governments, publicly funded and non-profit institutions

Hereby agree to the following measures in order to promote interoperability and accessibility through the use of open standards.

1. To create a policy statement on interoperability and open standards, to be available to employees and the public.

2. By 2010, procurement of all software should be vendor neutral and implement open standards

3. By 2010, tender specifications for hardware (including peripherals and mobile devices) should require that manufacturers provide the driver and interface information necessary to work with a reasonable range of proprietary and free operating system platforms.

4. By 2010, all public facing web pages should conform to W3C standards for structure, presentation and accessibility.

5. By 2010, tenders for the supply of web based services (for example, online reservations) must specify the requirements of point 4.

6. By 2010, agencies should implement policies regarding the storage and archiving of government data and records to ensure that data is stored in open data and document formats.

Signed by:

Aslam Raffee, Government IT Officers' Council, OSS Working Group, Republic of South Africa

Association for Progressive Communications (APC)

Bob Jolliffe, Freedom To Innovate, South Africa

Centre for Internet and Society, India

Hamid Rabiee, Sharif University of Technology, Iran

Knowledge Ecology International

Moving Republic, India

Shuttleworth Foundation, South Africa

Swathanthra Malayalam Computing, India

Endorsed by:

Bangladesh Friendship Education Society, Bangladesh

Indian Social Action Forum (INSAF), India

Foundation for Media Alternatives, Philippines

OpenForum Europe

For more details visit https://cis-india.org/openness/publications/standards/dynamic-coalition-on-open-standards-dcos-agreement-on-procurement

Open Standards

pranesh — 2010-01-11T10:52:23Z

The Centre for Internet and Society promotes Open Standards, i.e., standards that are technically and legally free to study, free to use, developed and managed in an open manner, with a complete implementation available to all. Open standards help all -- government and citizens, industry and consumers -- by allowing greater interoperability and choice (since they are necessary for free and open source software), greater competition, reduction in costs, and greater long-term reliability. As part of our work on Open Standards, we have been providing the comments to the Indian government's Draft National Policy on Open Standards for e-Governance, and have been working as a member of the Dynamic Coalition on Open Standards at the UN-sponsored Internet Governance Forum.

For more details visit https://cis-india.org/openness/publications/standards/standards

Report on Open Standards for GISW2008

pranesh — 2009-01-05T06:52:54Z

In this report, Sunil Abraham lays out the importance and the policy implications of Open Standards.

[PDF copy]

Most computer users today remain “digitally colonised” (Bhattacharya, 2008) due to our unquestioning use of proprietary standards. As users of proprietary standards we usually forget that we lose the right to access our own files the moment the licence for the associated software expires. For example, if I were to store data, information or knowledge in .doc, .xls or .ppt format, my ability to read my own files expires the moment the licence for my copy of Microsoft Office expires.

Definition

Unlike the terms “free software” or “open source software”, the term “open standard” does not have a universally accepted definition. The free and open source software (FOSS) community largely believes that an open standard is:

[S]ubject to full public assessment and use without constraints [royalty-free] in a manner equally available to all parties; without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an open standard themselves; free from legal or technical clauses that limit its utilisation by any party or in any business model; managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties; available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties (Greve, 2007).

The controversy

Proprietary software manufacturers, vendors and their lobbyists often provide a definition of open standards that is not in line with the above definition on two counts (Nah, 2006).

One, they do not think it is necessary for an open standard to be available on a royalty-free basis as long as it is available under a “reasonable and non-discriminatory” (RAND) licence. This means that there are some patents associated with the standard and the owners of the patents have agreed to license them under reasonable and non-discriminatory terms (W3C, 2002). One example is the audio format MP3, an ISO/IEC [International Organisation for Standardisation/International Electrotechnical Commission] standard where the associated patents are owned by Thomson Consumer Electronics and the Fraunhofer Society of Germany. A developer of a game with MP3 support would have to pay USD 2,500 as royalty for using the standard. While this may be reasonable in the United States (US), it is unthinkable for an entrepreneur from Bangladesh. Additionally, RAND licences are incompatible with most FOSS licensing requirements. Simon Phipps of Sun Microsystems says that FOSS “serves as the canary in the coalmine for the word ‘open’. Standards are truly open when they can be implemented without fear as free software in an open source community” (Phipps, 2007). RAND licences also retard the growth of FOSS, since they are patented in a few countries. Despite the fact that software is not patentable in most parts of the world, the makers of various distributions of GNU/Linux do not include reverse-engineered drivers, codecs, etc., in the official builds for fear of being sued. Only the large corporation-backed distributions of GNU/Linux can afford to pay the royalties needed to include patented software in the official builds (in this way enabling an enhanced out-of-the-box experience). This has the effect of slowing the adoption of GNU/Linux, as less experienced users using community-backed distributions do not have access to the wide variety of drivers and codecs that users of other operating systems do (Disposable, 2004). This vicious circle effectively ensures negligible market presence of smaller community-driven projects by artificial reduction of competition.

Two, proprietary software promoters do not believe that open standards should be “managed and further developed independently of any single vendor,” as the following examples will demonstrate. This is equally applicable to both new and existing standards.

Microsoft’s Office Open XML (OOXML) is a relatively new standard which the FOSS community sees as a redundant alternative to the existing Open Document Format (ODF). During the OOXML process, delegates were unhappy with the fact that many components were specific to Microsoft technology, amongst other issues. By the end of a fast-track process at the ISO, Microsoft stands accused of committee stuffing: that is, using its corporate social responsibility wing to coax non-governmental organisations to send form letters to national standards committees, and haranguing those who opposed OOXML. Of the twelve new national board members that joined ISO after the OOXML process started, ten voted “yes” in the first ballot (Weir, 2007). The European Commission, which has already fined Microsoft USD 2.57 billion for anti-competitive behaviour, is currently investigating the allegations of committee stuffing (Calore, 2007). Microsoft was able to use its financial muscle and monopoly to fast-track the standard and get it approved. In this way it has managed to subvert the participatory nature of a standards-setting organisation. So even though Microsoft is ostensibly giving up control of its primary file format to the ISO, it still exerts enormous influence over the future of the standard.

HTML, on the other hand, is a relatively old standard which was initially promoted by the Internet Engineering Task Force (IETF), an international community of techies. However, in 2002, seven years after the birth of HTML 2.0, the US Department of Justice alleged that Microsoft used the strategy of “embrace, extend, and extinguish” (US DoJ, 1999) in an attempt to create a monopoly among web browsers. It said that Microsoft used its dominance in the desktop operating system market to achieve dominance in the web-authoring tool and browser market by introducing proprietary extensions to the HTML standard (Festa, 2002). In other words, financial and market muscle have been employed by proprietary software companies – in these instances, Microsoft – to hijack open standards.

The importance

There are many technical, social and ethical reasons for the adoption and use of open standards. Some of the reasons that should concern governments and other organisations utilising public money – such as multilaterals, bilaterals, civil society organisations, research organisations and educational institutions – are listed below.

Innovation/competitiveness: Open standards are the bases of most technological innovations, the best example of which would be the internet itself (Raymond, 2000). The building blocks of the internet and associated services like the world wide web are based on open standards such as TCP/IP, HTTP, HTML, CSS, XML, POP3 and SMTP. Open standards create a level playing field that ensures greater competition between large and small, local and foreign, and new and old companies, resulting in innovative products and services. Instant messaging, voice over internet protocol (VoIP), wikis, blogging, file-sharing and many other applications with large-scale global adoption were invented by individuals and small and medium enterprises, and not by multinational corporations.
Greater interoperability: Open standards ensure the ubiquity of the internet experience by allowing different devices to interoperate seamlessly. It is only due to open standards that consumers are able to use products and services from competing vendors interchangeably and simultaneously in a seamless fashion, without having to learn additional skills or acquire converters. For instance, the mail standard IMAP can be used from a variety of operating systems (Mac, Linux and Windows), mail clients (Evolution, Thunderbird, Outlook Express) and web-based mail clients. Email would be a completely different experience if we were not able to use our friends’ computers, our mobile phones, or a cybercafé to check our mail.
Customer autonomy: Open standards also empower consumers and transform them into co-creators or “prosumers” (Toffler, 1980). Open standards prevent vendor lock-in by ensuring that the customer is able to shift easily from one product or service provider to another without significant efforts or costs resulting from migration.
Reduced cost: Open standards eliminate patent rents, resulting in a reduction of total cost of ownership. This helps civil society develop products and services for the poor.
Reduced obsolescence: Software companies can leverage their clients’ dependence on proprietary standards to engineer obsolescence into their products and force their clients to keep upgrading to newer versions of software. Open standards ensure that civil society, governments and others can continue to use old hardware and software, which can be quite handy for sectors that are strapped for financial resources.
Accessibility: Operating system-level accessibility infrastructure such as magnifiers, screen readers and text-to-voice engines require compliance to open standards. Open standards therefore ensure greater access by people with disabilities, the elderly, and neo-literate and illiterate users. Examples include the US government’s Section 508 standards, and the World Wide Web Consortium’s (W3C) WAI-AA standards.
Free access to the state: Open standards enable access without forcing citizens to purchase or pirate software in order to interact with the state. This is critical given the right to information and the freedom of information legislations being enacted and implemented in many countries these days.
Privacy/security: Open standards enable the citizen to examine communications between personal and state-controlled devices and networks. For example, open standards allow users to see whether data from their media player and browser history are being transmitted along to government servers when they file their tax returns. Open standards also help prevent corporate surveillance.
Data longevity and archiving: Open standards ensure that the expiry of software licences does not prevent the state from accessing its own information and data. They also ensure that knowledge that has been passed on to our generation, and the knowledge generated by our generation, is safely transmitted to all generations to come.
Media monitoring: Open standards ensure that the voluntary sector, media monitoring services and public archives can keep track of the ever-increasing supply of text, audio, video and multimedia generated by the global news, entertainment and gaming industries. In democracies, watchdogs should be permitted to reverse-engineer proprietary standards and archive critical ephemeral media in open standards.

Policy implications

Corporations have a right to sell products based on proprietary standards just as consumers have a right to choose between products that use open standards, proprietary standards, or even a combination of such standards. Governments, however, have a responsibility to use open standards, especially for interactions with the public and where the data handled has a direct impact on democratic values and quality of citizenship. In developing countries, governments have greater responsibility because most often they account for over 50% of the revenues of proprietary software vendors. Therefore, by opting for open standards, governments can correct an imbalanced market situation without needing any additional resources. Unfortunately, many governments lack the expertise to counter the campaigns of fear, uncertainty and doubt unleashed by proprietary standards lobbyists with unlimited expense accounts.

Most governments from the developing world do not participate in international standard-setting bodies. On the other hand, proprietary software lobbyists like the Business Software Alliance (BSA) and Comptia attend all national meetings on standards. This has forced many governments to shun these forums and exacerbate the situation by creating more (totally new) standards. Therefore, governments need the support of academic and civil society organisations in order to protect the interests of the citizen. For example, the Indian Institute of Technology in Kanpur (IIT-K) helped the government of India develop the open standard Smart Card Operating System for Transport Applications (SCOSTA) for smart card-based driving licences and vehicle registration documents. Proprietary vendors tried to jettison the move by saying that the standard was technically not feasible. IIT-K developed a reference implementation on FOSS to belie the vendor's claims. As a consequence, the government of India was able to increase the number of empanelled smart-card vendors from four to fifteen and reduce the price of a smart card by around USD 7 each (UNDP, 2007a). This will hopefully result in enormous savings during the implementation of a national multi-purpose identification card in India.

In some instances, proprietary standards are technically superior or more universally supported in comparison to open standards. In such cases the government may be forced to adopt proprietary and de facto standards in the short and medium term. But for long-term technical, financial and societal benefits, many governments across the world today are moving towards open standards. The most common policy instruments for implementation of open standards policy are government interoperability frameworks (GIFs). Governments that have published GIFs include the United Kingdom, Denmark, Brazil, Canada, the European Union, Malaysia, Hong Kong, Malaysia, New Zealand, and Australia (UNDP, 2007b).

While challenges to the complete adoption of open standards in the public sector and civil society remain, one thing is certain: the global march towards openness, though slow, is irreversible and inevitable.

References

Bhattacharya, J. (2008) Technology Standards: A Route to Digital Colonization. Open Source, Open Standards and Technological Sovereignty. .
Available at:
knowledge.oscc.org.my/practice-areas/‌government‌/oss-seminar-putrajaya-2008/technology-standards-a-route-to-digital/at_download/file

Calore, M. (2007) Microsoft Allegedly Bullies and Bribes to Make Office an International Standard. Wired, 31 August.
Available at: www.wired.com/software/coolapps/news/2007/08/ooxml_vote

Disposable (2004) Ubuntu multimedia HOWTO.
Available at: www.oldskoolphreak.com/tfiles/‌hack/‌ubuntu.txt

Festa, P. (2002) W3C members: Do as we say, not as we do. CNET News, 5 September.
Available at: news.cnet.com/2100-1023-956778.html

Greve, G. (2007) An emerging understanding of open standards.
.
Available at: www.fsfe.org/‌fellows‌/greve/freedom_bits/an_emerging_understanding_of_open_standards

Nah, S.H. (2006) FOSS Open Standards Primer. New Delhi: UNDP-APDIP.
Available at: www.iosn.net/open-standards/foss-open-standards-primer/foss-openstds-withnocover.pdf

Phipps, S. (2007) Roman Canaries..
Available at: blogs.sun.com/webmink/entry/‌roman_canaries‌

Raymond, E.S. (2000) The Magic Cauldron.
Available at: www.catb.org/~esr/writings/‌cathedral-‌bazaar/‌magic-‌cauldron/‌index.html

Toffler, A. (1980) The Third Wave. New York: Bantam.

UNDP (United Nations Development Programme) (2007a) e-Government Interoperability: A Review of Government Interoperability Frameworks in Selected Countries.
Available at: www.apdip.net/projects/gif/gifeprimer

UNDP (2007b) e-Government Interoperability: Guide.
Available at: www.apdip.net/projects/gif/GIF-Guide.pdf

US DoJ (Department of Justice) (1999) Proposed Findings of Fact – Revised.
Available at: www.usdoj.gov/‌atr/‌cases/‌f2600/v-a.pdf

W3C (World Wide Web Consortium) (2002) Current patent practice.
Available at: www.w3.org/TR/patent-practice#def-RAND

Weir, R. (2007) How to hack ISO.
Available at: www.robweir.com/blog/2007/09/how-to-hack-iso.html

For more details visit https://cis-india.org/openness/publications/standards/report-on-open-standards-for-gisw2008

National Public Meeting on Software Patents

pranesh — 2011-04-05T04:45:10Z

This meeting will feature the following speakers: Nagarjuna G. (Free Software Foundation of India), Prabir Purkayastha (Delhi Science Forum), Prashant Iyengar (Alternative Law Forum), Venkatesh Hariharan (Red Hat) and Sudhir Krishnaswamy (National Law School)

Agenda

1000–1100	Presentation on the principles of patent law and software patents	Sudhir Krishnaswamy (National Law School)
		Prabir Purkayastha (Delhi Science Forum)
		Nagarjuna G. (Free Software Foundation of India)
1100–1130	Discussion on software patents in the Indian context: Indian Patent Act, and the draft patent manual	Prashant Iyengar (Alternative Law Forum)
		Venkatesh Hariharan (Red Hat)
1130–1150	Tea break
1150–1240	Discussion on patents and the development sector (freedom of speech, open standards, healthcare, biotech, agro-sector, etc.)	Sunil Abraham (Centre for Internet and Society)
		Anivar Aravind (Movingrepublic)
		Others
1240–1300	Presentation on the software patents that have been granted so far in India	Pranesh Prakash (Centre for Internet and Society)
1300–1400	Lunch break
1400–1700	Open House	Joseph Mathew (IT Adviser to the Chief Minister of Kerala)
		T. Ramakrishna (National Law School)
		Abhas Abhinav (DeepRoot Linux)
		Sreekanth S. Rameshaiah (Mahiti Infotech)
		Vinay Sreenivasa (IT for Change)
		Any others who wish to speak

Documents

Other information

For more details visit https://cis-india.org/openness/publications/software-patents/national-public-meeting-on-software-patents

Response of Free Software Foundation of India

pranesh — 2008-09-21T14:40:57Z

The FSFI's draft response to the Patent Office

This is with reference to the Draft Patents Manual on which your office has invited comments. On behalf of Free Software Foundation of India (http://www.gnu.org.in/) I hereby submit our response and comments pertaining to the relevant sections that refer to computer programs.

Computer programs (software) is not patentable as per the Clause 3(k) of the Indian Patent Act. This point is clearly stated in the manual. However, the section 4 of the Draft Manual makes an attempt to inform the inventors and potential Patent applicants that while software per se is not patentable, software in combination with hardware can be patented. The draft appears to make a room for this possibility. This is important to recollect that an amendment to this effect was suggested in the Presidential Ordinance tabled in the parliament in December 2005, and the house rejected this amendment. Therefore, what the policy of the land rejected cannot be enabled through instructions in a manual, subverting the legal framework already laid. In what follows we demonstrate how the draft manual is enabling this possibility.

4.11.2 does not preclude a computer program embedded in a ROM as what constitutes a computer program. According to 4.11.2 a computer program "may be expressed in various forms e.g., a series of verbal statements, a flowchart, an algorithm, or other coded form and maybe presented in a form suitable for direct entry into a particular computer, or may require transcription into a different format (computer language). It may merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it maybe permanently recorded in a control store forming part of a computer. " (4.11.2)

It is very important to state that computer program can be encoded in various kinds of digital media including those that are invented as well as those that may in future be invented. E.g. ROM, EPROM or BIOS are also embedded memories where computer programs can be embedded. Mere inclusion of data or computer programs in such chips on the board are also not patentable. Such chips are often present on the board of a digital device should therefore be explicitly mentioned in the manual as one of the forms in which a computer programs can be encoded and hence excluded from patentable invention.

Since such a statement is absent in the draft manual, we suggest, it must be explicitly included in 4.11.2. A sample statement that we propose can be as follows:

A computer program may be encoded or stored in the form of an electronic chip or read only memory (ROM) or in component that can be embedded as a part of an electronic circuit. Since this is a mere extension of a recordable surface of code over which any digitized data can be stored including a computer program, mere inclusion of a software or data in such electronic chip or ROM will not be considered as a hardware innovation, therefore not allowed.

4.11.3 again indicates that "The source/pseudo/object codes may be incorporated in the description optionally." When the law clearly states that source code (a computer program), pseudo code (an algorithm) or not patentable, how can an invention be described in that form. 4.11.3 should be removed completely since hardware or process patents are not covered under 3(k). This point opens up a room for patenting software in combination with hardware or process patents. This should be forbidden, unless the law says that software can be patented in combination with hardware and processes. Since the law does not say so, this makes no sense to tell an inventor to provide code.

4.11.4 is a clarification on what constitutes a prior art, which done elsewhere in the document. Specifically mentioning this under this section gives a clear indication that it is about patenting hardware. But, the objective of the section is not to clarify what is patentable. Hardware inventions are already covered under technical inventions and do not need a separate mention under the chapter whose objective is to tell what is not patentable.

4.11.5 mentions that there can be three kinds of computer inventions. Once computer programs are separated out, what remains in the computer is innovations pertaining to electronics and communication. Therefore, talking about them in this context only opens up a room for people to think that patenting software in combination with hardware is possible. First: method or procedure in the context of a computer is nothing but a program which is not patentable. Second: inventing an apparatus or a system is patentable and therefore should not be included in this section. Including in this section only helps inventors to interpret that apparatus or a system in combination with software is patentable.

The following statement from 4.11.6 clearly brings out what the draft manual is trying to achieve: "Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the "software per se" is differentiated from the software having its technical application in the industry is about "technical applicability of the software claimed as a method or a process claim."

This is an attempt to explain what can be the meaning of "per se" in the clause 3(k). It relegates software to be a mere expression, for an expression does not have any technical application, except that a human interpreter trained in coding can read and understand. Therefore, what this draft is informing the community is clear. Since, all software can have technical application, so when we file for patents we have spell out the intended application of the software, and there is a novelty in applying the software patents can be granted. So, here the innovation is to think of a novel application even if the software per se is not novel. This is where the absurdity of the elaboration comes from.

The implication is that if a software, let us say an email client, in combination with a special gadget, say some USB pendrive, which in turn can be combined with say a bluetooth communication device, etc., can be claimed for a patent since no such innovation is a prior art. This is absurd, since here each of the three are performing independently of each other and mere combination is not an innovation. This is a mere exploration of making what is possible. One may say that the output of one device becomes an input for the other device. The innovation consists in linking these two devices as one. But this idea of linking input output devices is known art as old as human culture.

This way the domain of patentable art increases by several folds. We understand that the wealth of Patent's office enhances as well as a section of the industry due to this. This should not be the objective of the patent's office. The office should on hte other hand exclude such mere combinations as an art of the possible and clearly state in this section that such a combination art is not patentable. This will encourage more innovators so that very large smaller workshops across the country belonging to small and medium scale industries and young entrepreneurs can perform these combinations and come up with innovations without becoming a victim of the big patent hungry corporations.

The other danger is that big corporations will hire people explore all the logical possibilities of these combinations and claim patents on all of them. This should be prevented, if the patent office is really interested in encouraging a large number of individuals to enjoy the benefits of science and technology. If people at large do not participate in such combination art, science and technology will not percolate to people at large. People should have the right to implement ideas, and should not be living in a world where there will always be threat that some company will kill him for their innovations.

Another major problem of this section consists in relegating software per se has no technical use just because it has not been combined with any device so far.

The terms "software claimed as a process" and "software claimed as a method", (Cf. 4.11.5 and 4.11.6) are not clearly defined in the law. Therefore such terms cannot be brought in the manual. 4.11.9 is a very serious threat to a innovating society. A draft manual has no right to bring in such a blatant back door entry of a rejected statement by the house of the country. This kind of amendment was attempted in 2005 through a presidential ordinance, and Parliament rejected it. The patent's office has no right to bring it back without first making an amendment.

FSF India, as well as the whole world reacted strongly to this amendment. Since the draft manual makes an attempt to reintroduce this possibility by explicitly stating that software in combination with hardware (embedded systems) (Cf.4.11.9) is patentable, it is important to reiterate the arguments, which are as follows:

Any software can be embedded into a hardware by using either flash or ROM or some some rule set embedded in the circuit. E.g., a large number of mathematical, graphic and audio manipulations which were at one time performed by software are all currently available as embedded solutions within the integrated boards. Each such integration should not be considered patentable.

All hardware that does symbolic manipulations can also be simulated in a software. E.g., if a computer does not have a direct 3D rendering as a part of a VGA card, such computer can perform 3D rendering by using a software library.

This clearly indicates that the entire domain of symbolic and datamanipulation must be kept completely out of the domain of patentability. That is clearly the wisdom of 3(k) where all the innovations that happen in the domain of mathematics, algorithms, computer programs are kept out of the domain of patentability.

The most important ontological issue here is that there does not exist any software that can be made to work independently of any hardware. Some active media, either hardware or wetware (a living human or intelligent being), is required for performing the symbolic manipulation (executing instructions). Therefore, all software--since all software works only in combination with some hardware--is patentable.

Allowing software in combination with hardware multiplies the domain of what is patentable by several folds. The demonstration of this very simple. Software A in combination with hardware A, hardware B, hardware C etc. are all independently patentable for each of the combination is an innovation. The popular demand from the big industry players who wanted this kind of amendment all over the world is therefore clear. What they want is to increase somehow the domain of patentable innovations, so that they can continue to twist the arms of small time innovators.

We therefore request that these sections that explicitly encourage innovators to claim "software in combination with hardware" be not only be removed, but explicitly inform the community that they are not patentable. This will encourage innovators to work out the art of the possible and a healthy competitive world will result in this domain since no fear exists among the innovators and even small time innovators could venture. The objective of the patent's office should be not to enhance the domain of patentability, but to limit, since in this case it is very clear that such a provision restricts the participation of community at large to participate in the innovation.

In this section 4.11, which is a guide to 3(k), it should be clearly mentioned that "A mathematical or business method or a computer programme per se or algorithms are not patentable" because as such such methods are already protected under the copyright act. Therefore the desirable interpretation of 3(k) should be, computer programs per se are not allowed under patents act and are only allowed under copyright since a computer program per se is nothing but an expression, and expressions are protected under copyright and expressions are not innovations and so not patentable.

Combining an expression (mathematical or computer programs or algorithms) with different variety of hardware is an art of the possible and therefore such a combination art is not considered an innovation. All industries small or big should be encouraged to participate in combining them innovately without any fear of stepping on a land mine.

Free(dom) software (popularly known as free and open source software coming out from GNU, Gnome, KDE, Apache, Mozilla, freeBSD, RedHat, Ubuntu, and such projects) is increasingly getting embedded in several embedded (hardware) devices and their usage is increasing by several folds every day. Our community is concerned about the recurring enthusiasm our Patent's office has in finding a way to make software related innovations and bring them to allowable category. On behalf of FSF India, a representative of a global community of free software community, requests the office to redo the elaborations of 3(k). FSF India can enthusiastically help in re-drafting this portion if the office gives us a chance. As an important stakeholder of a very large free software community globally, neglecting our serious objections will not help the industry and community at large to take the full benifit of free software.

Considering that the ICT revolution took place without allowing software patents, there is no need for expanding the domain of patentable innovations.

Even if other countries made such provisions, India as world's largest democracy should not create an atmosphere of anti-innovation. As a country with large human resource, we have a bigger challenge of harnessing more creativity among the country, and that will happen by bringing each and every citizen under creative participation and not by bringing each and every thing under allowable patents category. India should lead the rest of the world by clearly stating in the manual that computer programs are not patentable in India by any other way and are per se protected only under copyright.

The practical advantage of not allowing software patents in India will enable Indians to work with those ideas that are otherwise patented elsewhere.

For more details visit https://cis-india.org/openness/publications/software-patents/response-of-free-software-foundation-of-india

Co-organisers

pranesh — 2008-10-01T13:56:24Z

These organisations are involved in organizing the event, in funding it, or just as a partner organisation wishing to share the platform. Some of them are tentatively being included in this list as their involvement is hoped for.

Centre for Internet and Society, Bangalore
Free Software Users Group, Bangalore
Free Software Foundation of India, Mumbai
Society For Promotion of Alternative Computing and Employment, Trivandrum
IT for Change, Bangalore
Alternative Law Forum, Bangalore
Delhi Science Forum, Delhi
Movingrepublic, Kerala
Sarai/CSDS, Delhi
OpenSpace, Bangalore
Swathanthra Malayalam Computing, Kerala
Servelots - Janastu, Bangalore
Mahiti, Bangalore
DeepRoot Linux, Bangalore
Wiki Ocean, Pune [TBC]
Turtle Linux Lab, Bangalore
Zyxware Technologies, Trivandrum
INSAF (Indian Social Action Forum)
Aneka, Bangalore

For more details visit https://cis-india.org/openness/publications/software-patents/co-organisers

Representation by Knowledge Commons

pranesh — 2008-09-30T14:47:25Z

Representation by Knowledge Commons to the Office of the Controller General of Patents, Designs and Trade Marks on the Draft Manual of Patent Practice and Procedure (2008)

Representation on Modifying Section 4.11 of the Draft Patents Manual

1. Scope of 3 k) and the Amendment of 2004

3 k) A mathematical or business method or a computer programme per se or

algorithms are not patentable.

The Amendment that was a part of the Ordinance in December 2004 on 3 k) above was as follows:

3 (k) a computer programme per se other than its technical application to industry or a combination with hardware;

3 (ka) a mathematical method or a business method or algorithms;

Comment: From the above, it is clear that Parliament did not believe that the exceptions to computer programme per se as an exception needed to be put in a different category and qualified as suggested in the Ordinance. Computer programmes per se, a mathematical or business method or algorithms were all treated as similar. The similarity here was based on the fact that they are all abstract ideas and therefore should not be patentable. The Draft Manual seeks to circumvent Parliament's definition of what is not patentable in the section on 3 k). We will give a para by para submission on the Draft Manual section on 3 k), namely, Sections 4.11.1 to 4.11.11.

2. Clause 4.11.1 A computer implemented invention mean any invention the performance of which involves the use of computer, computer network or other programmable apparatus, or an invention one or more features which are realized wholly or partially by means of a computer programme/ programmes.

Comment: The Clause above introduces a new category called computer implemented invention. The Patents Act cannot make an exception for inventions merely because the performance of this invention requires a computer. There is no provision in patents law for such exceptions to be created.

3. 4.11.5 Applications related to computer inventions may broadly fall under the following categories:

(a) Method/process:

(b) Apparatus/system:

(c) Computer program product.

The following aspects should be looked into while dealing with such applications.

Comment: The way this clause is phrased, it appears to accept that computer program products can have valid claims with regards to patents. It should have been made clear in this clause that computer program(me) products are not patentable as they come under computer programme per se.

4. 4.11.6 The method claim should clearly define the steps involved in carrying out the invention. It should have a technical character. In other words, it should solve a technical problem. The claims should incorporate the details regarding the mode of the implementation of the invention via. hardware or software, for better clarity. The claim orienting towards a “process/method” should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the “software per se” is differentiated from the software having its technical application in the industry. A claim directed to a technical process which process is carried out under the control of a programme (whether by means of hardware or software), cannot be regarded as relating to a computer programme as such.

For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable.

Comment: Here, the Draft Manual clearly deviates from the Legislative intent that was expressed in rejecting the Amendment of the Patents Act as discussed in point 1 above. The Patent Office is now bringing back the Amendment of 3 k) by an interpretation that was denied by the Parliament.

There are two major departures that it makes from 3 k). In one, it expresses “the mode of the implementation of the invention via. hardware or software, for better clarity” treating software inventions to be on par with hardware inventions. This violates 3 k), which explicitly bars software per se. The argument that any software that solves a technical problem is not software per se is not sustainable as every problem solved can be claimed to be technical in nature by virtue of suitable drafting. It then makes software patents a matter of drafting skills and not a matter of content. The statement “the “software per se” is differentiated from the software having its technical application in the industry” has the problem that software can be claimed to solve problems in the data processing or in the video gaming or in multimedia industry. This definition renders software per se as devoid of any meaning and therefore is in violation of 3 k).

Software is machine implementation of an algorithm and by implementing on a computer an algorithm cannot become patentable. We have given detailed notes on this issue and have also shown that the US is currently revising some of these notions of software patenting.

The second issue is when software is combined with hardware. Here, the Draft Manual seems to argue that if the method is connected to physical signals, this in itself is enough to make the method allowable for patenting. The key question that the Draft Manual does not address that if the method has insignificant pre or post processing activity, in that case the method does not become eligible for patenting merely because it is connected to some real structures. Otherwise, a software which cannot be patented under current patent law would become eligible merely by adding some trivial pre or post processing features. It again becomes a way of “dressing” up software to escape from the bar of 3 k) and making this a drafting art rather than real content in terms of invention. A number of applications would need to be separately shown in the Patent Application to cover all possible applications of a method or an algorithm to convert a non-patentable idea to a patentable one.

5. 4.11.10 A mathematical method is one which is carried out on numbers and provides a result in numerical form (the mathematical method or algorithm therefore being merely an abstract concept prescribing how to operate on the numbers) and not patentable. However, its application may well be patentable, for example, in Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the invention concerned a mathematical method for manipulating data representing an image, leading to an enhanced digital image. Claims to a method of digitally filtering data performed on a conventional general-purpose computer were rejected, since those claims were held to define an abstract concept not distinguished from a mathematical method. However, claims to a method of image processing which used the mathematical method to operate on numbers representing an image can be allowed. The reasoning was that the image processing performed was a technical (i.e. non- excluded) process which related to technical quality of the image and that a claim directed to a technical process in which the method used does not seek protection for the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.

Comment: By virtue of the above, the Draft Manual is stating that the allowable claim goes beyond a mathematical method as it specifies a physical entity (signals) and the technical process (image processing) and therefore can be patented. Simply put, what the patent office is claiming is that while a mathematical method cannot be patented, however its application to a specific technical field – image processing in the Vicom case – is patentable.

The problem with this approach is that while the patent office may regard image or signal processing as a technical application, what is being patented is still a mathematical method. The mere fact that it is a mathematical algorithm applied to a specific application with specific physical entities does not change the content of what is being patented, which is still the mathematical algorithm. Only the scope of the patent is being narrowed by limiting it to image processing.

If the above is accepted, all that would be required for securing software patents for the actual mathematical method is to file separate applications for each of the application of the mathematical method, in this case the digital filtering algorithm. This is merely changing the form of the patent application and not its substance. We find such an interpretation completely contrary to the patent law that has been framed in this country.

The Image Processing case is particularly important, because if it is accepted, all compression techniques would also be patentable on similar grounds. Already, the practices of USPTO and EPO have led to a situation that a number of standard formats such as MPEG (MPEG4) and GIF have come under patents. Since any company that uses digital pictures – cameras, images on the web, etc., can be sued for infringing such patents, the potential economic consequence of such patents is enormous. This is why software patents under any garb, are particularly pernicious.

One of the earliest software patents was that of the LMZ compression, which was used in the GIF format. It is now widely accepted in the software industry that such patents are in fact patents of mathematical algorithms. It was because the GIF format came under a patent threat that other formats became popular. However, similar threats now exist for other formats for image processing. In most such cases, the software industry has had to file review applications in USPTO to invalidate such patents. We see no reason why we should follow this tortuous path, when we have a clear law on this on our statute books disallowing software patents.

The Indian Government has taken numerous policy decisions to promote open source software wherever it is available. One of the major threats to open source software is patents and the use of these patents in proprietary formats such as the GIF example noted above. This will effectively mean that Open Source software will be threatened by such patent claims making interoperability between two formats difficult to achieve. This will strike a body blow against the policies that the Government has been promoting on open source software in the country.

Instead, what needs to be done is to define the software in any invention in the manner of prior art. If the inventive criteria are satisfied outside of the software then the invention would be considered patent eligible. In the next para we have defined what in our view constitutes software per se, which is not patent eligible and allows for devices to be patented even if they have software as a component provided certain criteria are satisfied.

6. We give below what we believe is a clear and an unambiguous definition of software per se, which is therefore not patentable. This should replace the entire section 4.11.

Computer programme per se in clause 3 k) Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium. An information storage medium means any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information, other than an information storage medium that itself represents an inventive contribution to the art. A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art.

Under the foregoing definitions, a claim that merely recites software elements without any reference to hardware is per se unpatentable. If a claim recites both software elements and hardware elements, but the hardware elements amount to nothing more than reference to the components of a general purpose computer on which the software is executed, or an information storage medium in which the software is stored, such that the only possibly inventive aspect of the claim resides in the software elements, then the claim is not patentable. If the software/general purpose computer is combined with other hardware, and the inventive contribution resides primarily in the software or in the software in combination either with components of the general-purpose computer or in an information storage medium, then the claim is not patentable. If the claim recites software elements and hardware elements, and the hardware elements themselves are an inventive contribution to the art, then the claim may be patentable, provided that the claim as a whole is such that the pre-requisites of novelty, non-obviousness and utility are met.

For more details visit https://cis-india.org/openness/publications/software-patents/representation-by-knowledge-commons

Response by Knowledge Commons

pranesh — 2008-09-30T15:07:50Z

Arguments on why section 4.11 of the Patents Manual needs to be modified.

1. A patent is a state granted monopoly on an invention. As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The original intent of the patent system was to encourage disclosure by the inventor, in exchange for exclusive rights to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. As with any other policy instrument, we need to examine whether patents meet their intended objectives.

2. In this context, the degree of patent protection in India should be seen with the following in mind:

The desirable form of IPR protection is very much a function of development. Currently, the developed economies feel they should protect their IPR and restrict their dissemination. But these same countries have historically had much more lax IPR regimes that have allowed imitation to promote more rapid industrialization. For example, the US actively encouraged copying of European innovation in the 19th century and even “nationalised” wireless patents - claiming national interest. Even late 20th century rapid developers such as Japan and South Korea benefited greatly from relatively lax patent regimes. So there is a strong case for providing less IPR protection in the development phase, especially in those areas where domestic innovation is less advanced.

There is no clear correlation between high IPR protection and innovation[1], and much historical evidence to the contrary. A significant number of studies have shown that patents are important primarily in chemicals, chemical materials and pharmaceuticals, where patents can protect specific molecules or well defined but small slices of technology. In other areas, patents tend to be relatively less important in promoting innovation.

This means that India should first identify what are its national interests and then calibrate the IPR protection accordingly. For example, in pharmaceuticals, the current national interest lies clearly in restricting patents. This is also why the Indian Parliament has taken advantage of the flexibility of TRIPs to raise the bar of what is patentable. Indeed, other countries including the US are now copying some of these measures.[2]

An important example is in the area of software where India has a major interest, and where patents are being opposed by all Small and Medium sized companies. In Europe, this opposition led to the proposed directive on software patents to be defeated overwhelmingly in the European Parliament.

3. There are now attempts being made in India to bring in software patents using either the EPO or the USPTO practice. This attempt is being supported by a small number of large international software companies, who had earlier benefited from software being free from patents and are now trying to obstruct others who are entering the field. It is not in the interest of India's software industry to have restrictive patent regime, particularly as they switch from being service providers to product developers.

4. The EPO in fact has followed much of the USPTO practice, the only area that it differs with USPTO being in the business method patenting. However, as a number of observers have pointed out, this means drafting a business method patent as a technical application: it is the form of the patent rather than its content that changes with the EPO approach. Therefore, both EPO and USPTO have erred in accepting patents that are either algorithms or methods, dressed up as software patents.

5. The crisis of the US Patent Office is well known and many critics have pointed out that the US is facing effectively a broken patent system. They have pointed out that granting patents to objects that have existed for years, or patents that are patently ridiculous, does not serve any purpose whatsoever. A case in point is US Patent 20060071122, granted for a ‘full body teleportation system’. The abstract for this reads, ‘A pulsed gravitational wave wormhole generator system that teleports a human being through hyperspace from one location to another.’ Of course, there is no functional version of this. There are innumerable examples of this kind of patent being granted. Another kind of patent that serves no useful purpose is where the patented product or process is something that has been used for years and years, and is known to the whole world, such as the wheel, or swinging on a swing.[3] This undermines the entire basis of the patent system and has the potential to cause havoc. The rapid dilution of the tripartite test of novelty, non-obviousness and utility that led to such patents being granted is finally being halted in the USA, with the US Supreme Court ruling recently that obviousness cannot be constrained by a legal formulation, and the use of common sense is necessary in determining whether a patent be granted or not.[4]

6. Courts in all parts of the world have held that subject matter which would have the practical effect of pre-empting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection. This age-old and time-tested precedent effectively establishes the ineligibility for patent protection to laws of nature, abstract ideas and mathematical algorithms. If these could be patented, then in effect one would be patenting the tools of scientific enquiry itself, something no patent law allows as it would lead to halting scientific progress.

7. In the past, the courts have also held that regarding patentable subject that the inquiry into whether subject matter is eligible for patenting is one of substance, not form. This requires that the patent office look, not simply at the language of the patent claim to see if it recites a structure of multiple steps or components, but also at the practical effect of the claim to see if it in fact covers -- or otherwise would restrict the public’s access to -- a principle, law of nature, abstract idea, mathematical formula, mental process, algorithm or other abstract intellectual concept. Otherwise, it would make the determination of patentable subject matter depend simply on the draftsman’s art and would ill serve the principles underlying the prohibition against patents for 'ideas' or phenomena of nature. By skilled patent drafting, one should not be able to start patenting essentially abstract ideas, mental processes and newly discovered laws of nature or mathematical algorithms.

8. However, a number of patent offices, particularly the USPTO and the EPO have been granting patents recently for software also. This is without taking into consideration that all software is ultimately the expression of algorithms or mathematical methods. This has already created a situation which Tim Berners-Lee, one of the founders of the World Wide Web and director of the World Wide Web Consortium that sets global standards for the Internet, calls the biggest threat to software development.

All companies developing emerging technology are threatened by the prospect of patent licensing royalties. You could never find out what patent could possibly apply to what technology. You could never guess what things people might have the gall to say they have patented already. It really is a universal fear.’ (Tim Berners-Lee at Emerging Technologies Conference at the Massachusetts Institute of Technology, September 29, 2004.)

9. In the US, recent studies have shown that the only sector of the economy in which royalties are more than legal costs are pharmaceuticals[5]. In their recently published book, Bessen and Meurer have analysed the numbers in terms of revenues generated from patents as against cost of filing, maintaining and defending patents in courts. In their view, the data shows that except in the case of pharmaceuticals, patents generate far more litigation costs than revenue. The numbers are clear: domestic litigation costs --16 billion dollars in 1999 alone -- was about twice the revenue for patents. Even in this, almost two thirds of the revenue was from pharmaceuticals and chemicals. Worse, the more innovative the company, more was the likelihood of it being sued. The software and business method patents fared the worst, with costs far outstripping the benefits of patenting. The sector with the worst royalty to costs record is software, with most high technology firms being opposed now to software patents.

10. Apart from the reasons given above, the software patents have the problem of being ill defined and capable of very broad scope. It is difficult to build around as is possible in other areas of technology, precisely because of the vagueness of the claims. Novelty and inventive step is again much more difficult to disprove unlike pharmaceuticals, where it is the molecule with a clearly defined structure which is being patented. No company in the world can conduct patent searches for software, given the number of such patents being filed and the inability to identify the defining characteristic of the product being patented. Therefore, the provision of copyright is more than adequate for protecting IPR in software.

11. The other problem with software patents is that any large software project uses a large number of software components. Any one of them can be subjected litigation claiming patent violations. This would open the company to costly lawsuits and against the interests of all but the biggest global corporations who have deep pockets.

12. Today, even companies such as IBM, Sun, Texas Instruments, CISCO have joined the growing Free and Open Source Software (FOSS) community opposing software patents. Most of these companies have publicly stated that they are filing patents only for defensive purposes. Indian law also bars software patents. With regards to proprietary versus FOSS, India needs to analyse and define what should be its trajectory. There is enough grounds to believe that if Indian companies want to move from services model to a product model, software patents and proprietary software will not be the route to take instead, India should promote FOSS, as Brazil and China are doing.

13. Apart from the lack of natural reason for granting software patents, there are potential adverse consequences to the Indian economy in other areas should such patents are granted. The current explosion in bio-pharmaceutical development is increasingly dependent on the ability to perform large-scale data mining from huge amounts of genetic-genomic data. Highly specialised software is developed from pre-existing 'generic' software by bio-informatic technologists for this purpose. Allowing the patenting of the generic basic software will increase the costs of data mining substantially, and will have an extremely adverse impact on the competitive ability of small, knowledge-based entrepreneurial ventures of the kind that India excels in.

14. In India, it has been considered patents should be granted only when public good demands granting of such state protected monopolies. This was the practice also in the UK and the US. It is still the basis of the practice in most countries. It is only in the last few decades that the US, followed by the UK, Japan and now the European Patent Office has tried to change the interpretation of their Patents Acts to expand the scope of patentability. This attempt to enlarge the scope is from their national interest as they hold the largest number of patents. Therefore, their belief that strengthening the patent regime internationally will help their companies to build worldwide monopolies.

15. It is not in India’s national interest or in the interests of its people to expand the scope of state protected monopolies through expanding the patent scope. India’s national interest is best served by restricting the scope of such monopolies. Therefore, the patent regime in India should work on the presumption that patents are to be given only when there is a decisive case for patents. This has been the basis of the Indian Patents Act and is in tune with fundamentals of such legislation world over. It is only the deviation in patent interpretation that has produced a scenario where business methods, software and also mathematical methods are also being patented.

16. The US Supreme Court has now been correcting some of the excesses that has occurred in the US patents interpretation by the Court of Appeals of the Federal Circuit (CAFC). We see no reason why India should change it understanding of patentability following in the footsteps of the US and the EPO and subsequently need to correct such excesses.

17. The US Supreme Court had ruled earlier that Supreme Court has held that patent protection may not be granted for “laws of nature, natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185 (1981). The case has frequently been misread as a basis for patenting subject matter that is abstract and intangible. In fact, however, Diehr confirms that intangible subject matter may not be patented, whether directly or indirectly through artful claim drafting.

18. Diehr also re-affirmed its holding in Gottschalk v.Benson, 409 U.S. 63 (1972), that algorithms, or procedures for solving mathematical problems—the building blocks of computer programs—cannot be patented. Likewise, it reaffirmed its holding in Parker v. Flook, 437 U.S. 584 (1984), that an algorithm for computing a number that served as an alarm limit was not patentable by adding insignificant post-solution activity added to a unpatentable principle to a patenable process. Diehr reaffirmed that only tangible processes – in this case vulcanizing rubber-- and not abstract ideas are patentable.

19. In alignment with Benson and Flook, the US Supreme Court in Diehr held that structures or processes must, when considered as a whole, perform functions intended to be covered by patent law in order to be eligible for patent protection. Diehr followed and upheld the core holdings of both Benson and Flook.

20. The US Supreme Court therefore has not pronounced on software patents after Diehr and therefore Diehr still remains the definitive interpretation of software patents in the US.

21. The CAFC deviated from the Supreme Court ruling in Diehr in At&T vs Excel Communications and in State Street Bank. There, CAFC held that though abstract ideas were not patentable, they could be patented if they produced “a useful, concrete and tangible result.” This was inconsistent with the Supreme Court’s earlier rulings on this matter.

22. In a number of recent cases, the US Supreme Court has overruled the CAFC. In all these cases, the US Supreme Court has narrowed the definition of what is patentable. We have already quoted the KSR Vs Teleflex case in this context.

23. It is in this context that the CAFC is revisiting the State Street and AT&T Vs Excel Communications sitting in en banc. Significantly, it has posed the following questions on which it wants to re-examine the two cases. These are:

(1) Whether claim 1 of the [Bilski] patent application claims patent-eligible subject matter under 35 U.S.C. § 101?

(2) What standard should govern in determining whether a process is patent-eligible subject matter under section 101?

(3) Whether the claimed subject matter is not patent-eligible because it constitutes an abstract idea or mental process; when does a claim that contains both mental and physical steps create patent-eligible subject matter?

(4) Whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101?

(5) Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?

24. Obviously, the US Courts are re-thinking software patents in the light of its difficulty in establishing clear boundaries and tying all future innovation in a morass of litigation. With patent trolls entering the picture, it has become clear to the industry as well as the larger public in the US that the patent system is not being well served by software patents. The CAFC en banc review is only one such indication. Patent reforms are also being discussed in US Congress to address such issues.

25. Therefore, we would urge the patent office to take cognizance off the above and reconsider the paras in the Draft Patent Manual that allows software patents if they are seen to have technical applications.

26. We believe that the lawmakers have done their job and have defined clearly that software patents per se are not admissible in India. It is now incumbent on the patent office to make this clear and not admit such patents.

----

US CASES

Diamond v. Diehr,

450 U.S. 175 (1981)

Gottschalk v. Benson,

409 U.S. 63 (1972)

Parker v. Flook,

437 U.S. 584 (1984)

Alappat,

33 F.3d 1526 (Fed. Cir. 1994)

State Street Bank & Trust Co. v. Signature Financial Group, Inc.,

149 F.3d 1368 (Fed. Cir. 1998), 525 U.S. 1093 (1999)

AT&T Corp. v. Excel Communications, Inc.,

172 F.3d 1352 (Fed. Cir. 1999),

KSR International v. Teleflex

127 US 1727 (2007)

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[1] Against Intellectual Monopoly, Michele Boldrin and David K. Levine, http://www.dklevine.com/general/intellectual/againstnew.htm)

[2] Thus, while the US Trade Representative calls for Indian Patent Law to conform to US practices, patent reform is now being pushed aggressively within the US by the high tech industries that are complaining of grant opposition and post grant opposition (as exist in Indian Law) are being put forward as patent reforms in the US Congress. The US Supreme Court has now made combining two existing innovations into a “new” one invalid for patenting (again already barred under Indian Law). The US Court of Appeals for the Federal Circuit has now ruled in what is not patentable virtually in the same language for what is not patentable a broken patent system. Both pre according to the Indian Patent Act (Section 3 d, challenged by Novartis in Chennai High Court).

[3] US Patent 6368227, “Method for swinging on a swing”, filed by a five year old child; http://news.bbc.co.uk/2/hi/asia-pacific/1418165.stm, How an Australian lawyer patented the wheel. There are many other examples.

[4] "We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose." KSR International v Telefax US Supreme Court

[5] James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers

Put Innovators at Risk, Princeton University Press, March 2008.

For more details visit https://cis-india.org/openness/publications/software-patents/response-by-knowledge-commons-1

ALF's Note before 2005 Amendment

pranesh — 2008-09-30T15:19:30Z

Briefing note on the impact of software patents on the software industry in India

Prepared by

Lawrence Liang

Anuranjan Sethi

Prashant Iyengar

Background

While there has been a lot of discussion on the impact that the latest amendment to the Indian Patent Act will have on public health and the pharmaceutical sector in India, there has been a disturbing silence about the impact that the amendment has on the software industry.

After the patents (second amendment) in 2002, the scope of non patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”.

The important phrase that was added was ‘per se’, and with the amendment we effectively included Software patents into Indian Law. The latest amendment seeks to expand the scope of software patents, and states “a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms”.

This briefing note will not address the technical and legal implication of this amendment but instead pose the larger question of why we should be concerned about software patents, and the impact that it will have on the software industry in India.

I. Conceptual difference between Copyright and Patent

The first thing to note is that software is already protected under Copyright law, so what then is the motivation and the implication of a move from copyright protection to patent protection?

Software has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Software Patenting has recently emerged (if only in the US, Japan and Europe) as an alternative that software companies are increasingly employing to, in order to protect their products.

The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting.

a) Different Subject Matters

Copyright protection extends to all original literary works (among them, computer programs), dramatic, musical and artistic works, including films. Under copyright, protection is given only to the particular expression of an idea that was adopted and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright.

Generally patents are conferred on any ‘new’ and ‘useful’ art, process, method or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical. The Indian Patent Act, as modified in 2002 had made non-patentable the following:

“…a mathematical method or a business method or a computer programme per se or algorithms”.

However, the recent amendment ordnance states instead:

“…a computer programme per se other than its technical application to industry or a combination with hardware;

a mathematical method or a business method or algorithms.”

b) Who may claim the right to a patent/copyright?

Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright.

Software developers are perfectly protected without patents. Everyone who writes a computer program automatically owns the copyright in it. It's copyright law that made Microsoft, Oracle, SAP and the entire software industry so very big. It's the same legal concept that also protects books, music, movies, paintings, even architecture.

Many of the world's richest people owe their wealth to copyright law. Some examples are: Bill Gates, Paul Allen and Steve Ballmer (Microsoft); Larry Ellison (Oracle); Hasso Plattner and the other founders of SAP; Paul McCartney (Beatles); JK Rowling (Harry Potter).

The patent, on the other hand is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to actually apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering.

c) Rights conferred

Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by the rights of fair use which are available to the public. Under “fair use”, certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently developed by two different companies, neither would have a claim against the other.

A patent confers on the owner an absoulte monopoly which is the the right to prevent others from marking, using, offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents

Many patent applications cover very small and specific algorithms or techniques that are used in a wide variety of programs. Frequently the "inventions" mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed.

d) Duration of protection

The TRIPS agreement mandates a period of at least 20 years for a product patent and 15 years in the case of a process patent.

For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years.

II. Nature of Software and Indian Software Industry

Software is complex: The complexity of computer programs makes it difficult to be understood by any one person. This capacity for complexity allows for the creation of highly sophisticated products but also means that they are dependent on a vast range of technologies.

Software is free from the constraints of the real world that ensure a product does not become too complex. Major software may comprise up to 10 million lines of code - potentially thousands of inventions, any of which might be patented

For example, Apple was sued because its HyperCard program allegedly violates patent number 4,736,308, which covers a specific technique that, in simplified terms, entails scrolling through a database displaying selected parts of each line of text. Separately, the scrolling and display functions are ubiquitous fixtures of computer programming, but combining them without a license from the holder of patent 4,736,308 is now apparently illegal.

In its complexity, software is different from other engineering and mechanical inventions for which patent protection was devised. The latter are often characterized by large "building block" inventions that can revolutionize a given mechanical process. Software, especially a complex program, seldom includes substantial leaps in technology, but rather consists of adept combinations of many ideas. Whether a software program is a good one does not generally depend as much on the newness of a specific technique, but instead depends on the unique combination of known algorithms and methods. Patents should not protect such methods of innovation.

Software Technology evolves rapidly: Software technology is evolving much faster than other industries, even with its own hardware industry. Against this light, a patent that lasts upto 17 years is extremely alarming. Microprocessors double in speed every 2 years.

Research in software is galloping ahead of developments. In most industries, researching new ideas often costs more money than bringing them to the market. The software industry is, on the other hand, loaded with ideas.

The idea behind most software patents can be coded in just 20 lines of code, but any program incorporating that idea - along with many others - will be a thousand times larger. It is the writing of a program that takes all the time, not coming up with ideas.

What this means is that on an average of every two years, a product will have to be replaced in the market. The idea underlying it will remain the same although the particular means and variants of its applications may have changed radically.

Coming out with a full-featured product, every two years is costly especially in relation to the inexpensive idea that backs it. There’s more novelty in the development and application of the same idea to new technology than with coming up with the original raw idea.

The objective of granting patent rights should be to foster the growth and evolution of the industry. Granting a patent at this stage would be akin to unreasonably prolonging the life of a product.

It is generally found that those who are investing time creating and lodging patents are vastly outpacing those who are investing effort bringing such ideas to market. By the time an immature technology develops to the point where it can be incorporated into products, it has a dozen or more patents on it that render it commercially intractable.

Software doesn't wear out: In other industries, research continues up to a point where further research costs too much to be feasible. At this stage, the industry's output merely consists of replacing parts that have worn out.

However, in the software sector, a computer program that is fully debugged will perform its function forever without requiring maintenance or modification. “What this means is that unlike socks that wear out, and breakfast cereal that is eaten, a particular software product can be sold to a particular customer at most once. If it is to be sold to that customer again, it must be enhanced with new features and functionality.” This inevitably means that even if the industry were to approach maturity, any software company that does not produce new and innovative products will simply run out of customers! Thus, the industry will remain innovative whether or not software patents exist.

Software has different economics: Most other major industries have medium to high research and development costs and very high production costs. Most often, the production costs dwarf the other two areas (because of the physicality that they involve) so that these costs can be added on to the cost of the final product without any relatively major difference in the price.

Software is unique in this aspect because

-The research costs very little because “ideas are as abundant as air”

-The development of an idea into a marketable product costs far more than the research.

-The production costs are minimal, often just a little more than the price of the medium, which is typically a floppy or a CDROM.

Patents affect the ‘development’ stage of the process of ‘manufacture’ of software. Thus the threat exists that the price of software could be singularly determined by the number of patented innovations that it incorporates.

III. Patent and Innovation in Software Industry

As argued before the process of software development by its very nature is ‘incremental’ i.e. developing of new software majorly consists of building upon existing ideas and rearranging the processes devised by others, and hence has an inbuilt need for using existing algorithms and mathematical formulae. Patent protection over software or over a set of algorithms within patented software would inevitably create a thicket of patents which the subsequent software developer might need to obtain clearance from before he can begin to work on it. The costs involved in obtaining these clearances and those involved in case one finds oneself having infringed a patent are usually very high, as in the case of biomedical patents. This would act as a disincentive for an aspiring software developer and would adversely affect the growth of the Indian software industry. Introduction of two bills- ‘Genomic Research and Diagnostic Accessibility Bill, 2002’ and ‘Genomic Science and Technology Innovation Act of 2002’ though still pending before the US Congress show the real concerns involved for a ‘patent and innovation policy’ within genomics. Similar concerns are exist in the software and innovation policy and need to be addressed adequately by the each national legislature.

Further there are substantial costs involved in verifying which patents one must obtain clearance for as skimming through the huge patent databases has become a very costly exercise. Unfortunately, conducting a patent search is a slow, deliberative process that, when harnessed to software development, could stop innovation in its tracks. And because patent applications are confidential, there is simply no way for computer programmers to ensure that what they write will not violate some patent that is yet to be issued making survival a very important issue for smaller player in the market.

Various large companies in US have obtained exemptions from going through patent searches for standard work due to huge costs. In such a scenario in a small player software industry like India, it would be unwise to allow ‘software patents’ as they may have negative impact upon the innovation within the industry.

By its nature software industry is ‘innovation driven’ i.e. the only way a software company can compete and improve its sales or grip over market is by making better and more useful features available. This innovation which is the driving force behind the Indian software industry is bound to get affected if a patent protection is provided to software patents. If a company can easily sustain itself on its ‘invention’ (by obtaining patents upon its software) and need not remain innovation driven, which would mean that a patent monopoly would inversely impact innovation and competition in software industry. It would further give rise to monopolistic tendencies and a practice of quoting arbitrary price for the grant of ‘voluntary license’. This lesson can be learnt by looking west where the idea of Public Key Encryption was patented in the US. The patent expired in 1997 and until then, it largely blocked the use of Public Key Encryption in the US. Similar instances can be found w.r.t. ‘data compression software’ and ‘single click software’ patented by Amazon.com. A number of programs that people started to develop got crushed. They were never really available because the patent holders threatened them. This led to a lot of unrest in the software community which culminated into the public outrage against software patents. Similar pressures have prevailed in European community where software patents found public opposition too immense to mount for a long time.

A look at India's own development of its software industry would be of immense help as India started its software industry only after IBM was driven out of country. Before that, there was no software industry worth the name, with software and hardware being imported from IBM. Once IBM left, Indian computer companies developed computers using the UNIX operating system, which was in the public domain. This led to the presence of a large number of skilled software professionals with experience of UNIX were also writing high-level applications for making the entire computer system work.

IV. Political economy of software patents

While understanding the issue of software patents, it’s important to look at its political economy and the implications involved for India. If one were to study the trends of software patenting in US and Europe one would witness that the IBM owns a majority of patents along with other giant software companies and has been topping the list of maximum patents granted in US in the private sector. This fact must be seen in the light of the opposition faced from small business organisations, leading scientists and economists in Europe and the unprecedented delay in passing the Software Patent Directive of 2002 by the European parliament. It should be noted that the directive does not aim to make it possible to patent pure computer programs: it would only apply to computer software integrated into an appliance. This makes it much more restrictive than the amended Indian Patent Act, which opens out any technical application of a programme to industry or its realisation in hardware for patenting. Even with this restriction, the critics of the EU directive have pointed out that a patent on software is in effect a patent on an idea, while traditionally patents have been restricted to concrete physical inventions only. By making this amendment, it is possible to implement algorithms in hardware and then claim patent protection for this. Once an idea can be patented if it is burnt in to hardware, the argument for extending it to a software implementation gains ground. In fact, the first breach in the US for making software patentable came through this route. If one were to study the trends in the scope of patentable subject matter granted in software patents by US courts, one would observe that from Diamond v. Diehr onwards court has been granting patents on much more abstract components, which has slowly transformed into patenting the central idea underlying the software. This trend indicates the easy malleability of legal terminology which has brought US courts’ stand on software patents to a full circle from Gottschalk v. Benson where the court found a patent upon software as a patent upon the underlying algorithms which is nothing more than a mathematical formula, unpatentable by its very definition.

The concerns regarding the weaker relative position of these small players is much more relevant in India. Among the primary reasons for large corporations like IBM lobbying for software patents is due to their stronger hold over the software market and ownership of the largest number of patents in this market. Large corporations use their patents, apart from making royalty upon them, to getting access benefit to the patents of other companies. This would close the option of cross-licensing for a majority of Indian companies which have no patents upon software. License though may be obtained are usually available at exorbitantly high prices which would most likely be unaffordable for Indian companies which operate on a small scale and have restricted budget options. The multinational corporations would use software patents as a defensive strategy for preventing smaller Indian companies from gaining any grounds in the market, which would eventually drive them out of business hence destroying the existing Indian software industry.

Software industry has a very characteristic nature which makes it extremely vulnerable to being easily monopolized. Among these characteristics are Network effects (the fact that a program becomes more useful if more people use it), interoperability and compatibility problems, the low cost of massive reproduction of software, the difficulty of inspecting software distributed without the source code, the learning curve and the rapid evolution of the market. Taking the instance of Microsoft Windows (the most popular operating system in use in India today) which enjoys a perpetual monopoly over the operating system market in India, many a larger institutions find Windows extremely costly and desperately needed an alternative to it in order to do business profitably. The recent success of Linux operating systems is demonstrative of this, but this must be understood in the light that India follows a copyright regime for software which allows many of the above mentioned characteristics of compatibility and interoperability to be resolved which would be totally impossible in a software patent regime. This then means that software patents have a potential to hamper the growth of open software movement in India which has begun to play central role in Indian Government’s ‘e-governance’ initiative. Hence it’s extremely urgent to ensure that patents in software do not cause any harm to the fine balance that copyright has achieved.

While understanding a political economy argument of software patents the adverse impact of monopolization upon public interest which has been held to be of utmost importance by the apex court in India, even above one’s legitimate commercial interests.

V. Procedural Issues

There are a certain procedural issues involved which are of determinative nature as to the allowance of a software patent regime in India. India doesn’t have a well laid out or even a well practiced software patent practice to guide Indian patent office. In the absence of any such policy, examining software patent application becomes a very daunting task, coupled with which the complicated and highly technical nature of software, Indian patent office is quite incapable to evaluate complicated and technically trivial claims which software patent often present. Imposing a software patent regime in such a scenario would impact the quality of such patents which might then prove counter-productive in the development of Indian software industry.

To be able to tackle this situation more personnel and experts would have to be employed in the patent office that can then ensure maintenance of a certain quality standards while granting software patents. But this in turn may not produce increased innovation in the software industry for the human capital which would be invested into processing the claims and preventing and tackling with the patent infringements rather than being invested in developing new software and hence benefit the software industry and economy of the country in general.

The difficulty in reaching a policy to grant software patents and the impacts of granting these patents in the absence of policy are indeed far reaching. In the absence of a policy which classifies patents on algorithms, techniques etc. it would take an awfully long time for the patent office to process a claim, searching the ‘prior art’ which makes the system inefficient and unworkable. Long delays in processing patent applications and subsequent challenge procedure often makes filing for a patent an unwise option for small companies and individual software developer, which form the backbone of Indian software industry. For instance, IBM was granted a patent on the same data-compression algorithm that Unisys supposedly owned. Such an error which could prove lethal for a developing company which has planned its budget meticulously and in consequence of this error would be greatly disincentivized to develop new software. The Patent Office was probably not aware of granting two patents for the same algorithm because the descriptions in the patents themselves are quite different even though the formulas are mathematically equivalent. Even when patents are known in advance, software publishers have generally not licensed the algorithms or techniques; instead, they try to rewrite their programs to avoid using the particular procedure that the patent describes. Sometimes this isn't possible, in which case companies have often chosen to avoid implementing new features altogether. It seems clear from the evidence of the last few years that software patents are actually preventing the adoption of new technology, rather than encouraging it.

For more details visit https://cis-india.org/openness/publications/software-patents/alfs-note-before-2005-amendment

Software Patents Granted and Applied for in India

pranesh — 2009-10-08T09:13:33Z

This is a collection of pure software patents (i.e., a "computer programme per se") that have been granted and applied for in India.

Patent Number:
Applicant:
Link:
Non-jargon description of patent:
How it is pure software:
Prior art [if it is sufficiently easy to establish]:

For more details visit https://cis-india.org/openness/publications/software-patents/granted-patents

Software Patents

pranesh — 2010-01-11T09:53:12Z

Software patents are a potent threat to both open standards as well as FOSS. While in India, pure software patents (i.e., a patent over a "computer programme per se") are not allowed, still software patents are to be reckoned with. The draft patent manual prepared by the Patent Office in 2008 seemingly goes against section 3(k) of the Patents Act, and allows partially for software patents. Further, the Patent Office often incorrectly grants software patents, even though the same is prohibited by the law. We have started a wiki-based project to collect all such examples of incorrectly granted software patents.

For more details visit https://cis-india.org/openness/publications/software-patents/swpats

Oppose Software Patents

pranesh — 2010-01-15T12:20:55Z

Oppose software patents

Oppose software patents.

For more details visit https://cis-india.org/openness/publications/software-patents/campaign/overview

Oppose Software Patents

pranesh — 2010-01-15T12:20:02Z

Oppose Software Patents

For more details visit https://cis-india.org/openness/publications/software-patents/campaign

Section 200 Complaint in Vinay Rai v. Facebook India and Ors.

pranesh — 2012-02-20T16:22:35Z

This is the complaint filed by Vinay Rai against Facebook, Google, Microsoft, Yahoo, "Exboii" (sic), Shyni Blog, Topix, and others, under sections 200 and 156(3) of the Cr.P.C., read with sections 153A, 153B, 292, 293, 295A, 298, 109, 500, and 120B of the Indian Penal Code.

IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No __ of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A, First Floor, Pritvi Raj Road
New Delhi

... Complainant

Versus

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at : 4th Floor, Building-14, OPUS Towers, Mindspace, Cyberabad, APIIC SW Unit Layout, Madhapur, Hyderabad-500081
kirthiga@fb.com
07799021 119
FaceBook
Through its chairman
Donald Edward Graham
Facebook Corporate Office 1601 S. California Ave. Palo Alto, CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors, Tower -- C, Building No.8, DLF Cyber City, Gurgacn - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO,
Larry Page - CEO
1600, Amphitheatre, Parkway, Mountain View, CA 94043, USA
Yahoo India (P) Ltd.
Shri Arun Tadanki
Building No. 8, Tower-C, DLF Cyber City Phase-2, Gurgaon
Yahoo
Roy J. Bostock - Chairman
Yahoo! Inc.701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Shri Bhaskar Pramanik
7th Floor, Cyber Green Tower-A.
DLF Cyber City, Phase-3 Gurgaon-122002
Microsoft
Through Steve Ballmer - CEO Microsoft Corporation
One Microsoft Way, Redmond, WA 98052-7329 USA
Zombie Time
Exboii [sic]
Boardreader
IMC India
My Lot
Shyni Blog
Topix

...Accused

P.S. Tuglak Road

Complaint Under Section 200 Read With Section 156 (3) Of the Code of Criminal Procedure For Registration of FIR Under Section 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120 B of the INDIAN PENAL CODE.

THE COMPLAINANT MOST RESPECTFULLY SHOWETH:

That the complainant is a law abiding citizen of India. The Complainant is a resident of above stated address.
The complainant before this Hon'ble Court is a senior journalist and editor of Akbari, an Urdu weekly.
That the complainant is moving to this Court as a citizen of India, not only in public interest but also as an affected person who believes in a secular India.
The accused persons are the publishers and service provider of the electronic contents and also responsible to manage and control online site and internet contents, who ever used and post the material on the site through internet.
That the complainant wishes to draw the attention of this Hon'ble Court to certain content hosted on various websites, which are per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities; is demeaning, degrading and obscene, and will corrupt minds and will seriously affect religious sentiments . It is submitted that complainant had received some information about these type contents and material posted on the social site as well as sites of the above named accused and thereafter the complainant in his office at the above mentioned address while going through the contents of the above said websites realized that the same were unacceptable to the secular fabric provided by the constitution of India and would be intolerable to any community or religion.
That even on a bare perusal of the content it is clear that the same will certainly corrupt young minds below the age of 18 years is highly provocative and which may lead to illogical and dangerous consequences. It is humbly submitted that these contents prima facie appears to be dangerous for the society and communal harmony.
That such content, if allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiment of general public following different religions. Following are the websites which host the said objectionable content as provided to the Hon'ble court in a sealed envelope: 1.Facebook, 2.Youtube, 3. Google 4.Yahoo,5.0rkut, 6.Broadreader, 7. Mylot, 8.Zombie Time, 9.Shyni Blog, 10.Blogspot, 11.Exbii.com, 12.IMC India
That the accused persons are Social Networking Websites and their Directors, Agents with their addresses provided as per the memo of parties.
The Social Networking Websites are only for providing the educational, historical, research and entertainment work etc. as part of their commercial activities meaning thereby that the functions and informations which are regarding the welfare, development and entertainment of the society.
That on perusal of the same it has been found that presently there are so many objectionable materials available on these social networking websites which may lead to communal riots. It seems that the government authorities have turned a blind eye to the same and does not have any established measures or rules and guidelines to control and regulate the same. On the bare perusal of all these contents it is more than evident that the government is least bothered and as usual waiting for some dangerous consequences to happen before taking some appropriate actions . It is submitted that the neither police official nor the government had initiated any action to curve/check these activities sou moto and failed to registered any .case against the above named accused persons in any manner whatsoever under any law prevailing at present point of time and corrective measures against the said websites and the concerned officials.
That the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zomie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. These accused persons knowingly well these facts that these contents and materials are most dangerous for the community and peace of the harmony, but with common and malfide intention and hands under glove with each other failed to remove the same for the wrongful gain.
That the complainant is filing this complaint against the Directors, Agents, Officials, Representatives and Employees of all the said Social Networking Websites for having committed the offences under Section 153 (A), 153(B), 292, 293, 295(A), 298 and 500 of the IPC, which this hon'ble court will appreciate even on a bare glance of the contents provided in the sealed cover. The same is being provided to this hon'ble court in a sealed cover understanding my social responsibility not to publicize the offensive and inflammatory material which may lead to communal disharmony.
That the nature of the content hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious beliefs of certain communities and is intended to wound the religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression . The contents hosted on the websites are annexed to this complaint in a sealed cover as Annexure - A.
That Perusal of the content will lead to the conclusion that the same is per-se unacceptable. It is humbly submitted that the contents of the site are clearly established the offences punishable under provisions mentioned in the above and if the action will taken against the accused person the same will be caused serious prejudice to our society and social value provided and protected under constitution of India.
That as a member of the community, The complainant is not only individually hurt but also believe that if such content is allowed to continue to be on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. All those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material to malice and defame the country with intention to spread the communal violence to destabilise the country with undisclosed persons are liable to be prosecuted and punished under these Sections 153 (A), 153(B), 292, 293, 295(A), 298,109, 500 and 120B of the INDIAN PENAL CODE.
That the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony. It is clearly visible on the material available on these social networking websites.
That the content which has been clearly shown on these websites are clearly imputations, assertions, prejudicial to national integration. The material is clearly visible in the Annexure .
That the contents which are available on these social networking websites is obscene, that will create obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites. It will affect the minds of the children. It is also harmful in the development of the nation.
That the contents which are clearly mentioned and annexed in Annexure, shows the contents and malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage, religious feelings of any class by insulting its religion or religious beliefs.
That the cause of action for filing the present complaint has arisen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to know in the knowledge of the complainant while sitting at his above stated residence The cause of action is continuing and arising day by day.
That the cause of action has arisen within the jurisdiction of the Hon'ble Court which may take cognizance of the offence as committed by the accused persons.
That the present complaint has been filed within the period of limitation and this Hon'ble Court is competent to entertain & try the present complaint and grant relief to the complainant.
That the complainant seeks the permission of this Hon'ble Court to urge any additional ground or to examine any other witness or to submit any other documents which would be made available to him at the time of hearing of this complaint.

PRAYER

In view of the aforesaid submission made here in and in the interest of the justice, it is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

Register the present complaint.
Take cognizance of the offence, as the contents per-se amount to commission of offences, as indicated above, without anything more.
Summon try and punish the accused persons for committing the offences under section 153(A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120B of the IPC.
Take appropriate steps for prosecution and punishment of the above website owners, concerned officials and their representatives and undisclosed accused persons.

Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

COMPLAINANT

Through Counsel

Dated: 15.12.2011
Place: New Delhi

For more details visit https://cis-india.org/internet-governance/resources/s200-complaint-vinay-rai-v.-facebook-india-and-ors

Mufti Aijaz Arshad Qasmi v. Facebook and Ors (Order dated December 20, 2011)

pranesh — 2012-02-20T18:02:44Z

This is the order passed on December 20, 2011 by Addl. Civil Judge Mukesh Kumar of the Rohini Courts, New Delhi. All errors of spelling, syntax, logic, and law are present in the original.

Suit No 505/11

Mufti Aijaz Arshad Qasmi
vs.
Facebook etc.

20.12.11

Fresh suit received by assignment. It be checked and registered.

Present: Plaintiff in person with Ld. Counsel.

Ld. Counsel for plaintiff prayed for ex-parte ad-interim injunction. He has filed the present suit for permanent and mandatory injunction against 22 defendants who are running their social networking websites under the name of Facebook, Google India (P) Ltd., Yahoo India (P) Ltd., Microsoft India (P) Ltd., Orkut, Youtube etc as shown in the memo of parties in the plaint. It is submitted that plaintiff is an active citizen of India and residing at the given address and he believes in Secular, Socialist and Democratic India professing Muslim religion. It is further submitted that the contents which are uploaded by some of the miscreants through these social networking websites mentioned above are highly objectionable and unacceptable by any set of the society as the contents being published through the aforesaid websites are derogatory, per-se inflammatory and defamatory which cannot be acceptable by any of the society professing any religion. Even if the same is allowed to be published through these social networking websites and if anybody will take out the print and circulated amongst any of the community whether it is Muslim or Hindu or Sikh, then definitely there would be rioting at mass level which may result into serious law and order problem in the country. Where the miscreants have not even spare any of the religion, even they have created defamatory articles and pictures against the Prophet Mohammad, the Hindu goddess Durga, Laxmi, Lord Ganesha and many other Hindu gods which are being worshiped by the people of Hindu community. It is prayed by the counsel for plaintiff that the defendants may be directed to remove these defamatory and derogatory articles and pictures from their social websites and they should be restrained from publishing the same anywhere through Internet or in any manner. It is further submitted that the social websites are being utilised by the every person of whatever age of he is whether he is 7 years old or 80 years old. These defamatory articles will certainly corrupt not only young minds below the 18 years of age but also corrupt the minds of all age group persons. It is further submitted that even the miscreants have not spared the leaders of any political party whether it is BJP, Congress, Shiv Sena or any other political party doing their political activities in India, which may further vitiate the minds of every individual and may result into political rivalry by raising allegations against each other.

I have gone through the record carefully wherein the plaintiff has also filed a CD containing all the defamatory articles and photographs, plaintiff also wants to file certain defamatory and obscene photographs of the Prophet Mohammad and Hindu Gods and Goddesses. Photographs are returned to the plaintiff, although, the defamatory written articles are taken on record. Same be kept in sealed cover.

In my considered opinion, the photographs shown by the plaintiff having content of defamation and derogation against the sentiments of every community. In such circumstances, I am of the view that the plaintiff has a prima facie case in his favour. Moreover, balance of convenience also lies against the defendants and in favour of the plaintiff. Moreover, if the defendants will not be directed to remove the defamatory articles and contents from their social networking websites, then not only the plaintiff but every individual who is having religious sentiments would suffer irreparable loss and injury which cannot be compensated in terms of money. Accordingly, in view of the above discussion, taking in consideration the facts and circumstances and nature of the suit filed by the plaintiff where every time these social networking websites are being used by the public at large and there is every apprehension of mischief in the public, the defendants are hereby restrained from publishing the defamatory articles shown by the plaintiff and contained in the CD filed by the plaintiff immediately on service of this order and notice. Defendants are further directed to remove the same from their social networking websites.

Application under Order 39 Rule 1 & 2 CPC stands allowed and disposed of accordingly.

Summons be issued to the defendants on filing of PF/RO/Speed Post. The defendants having their addresses in different places may be served as per the provisions of Order 5 CPC. Reader of this court is directed to keep the documents and CD in a sealed cover. Plaintiff is directed to get served the defendants along with all the documents. Plaintiff is further directed to ensure the compliance of the provisions under Order 39 Rule 3 CPC and file an affidavit in this regard. Copy of this order be given dasti.

Put up for further proceedings on 24.12.11.

Sd/-
(Mukesh Kumar)
ACJ-cum-ARC, N-W
Rohini Courts, Delhi

For more details visit https://cis-india.org/internet-governance/resources/order-2011-12-20-mufti-aijaz-arshad-qasmi-v-facebook-and-ors