Software and IP Protection

As time passes, the technological advancements are picking up pace throughout the world. This results in increasing software usage, in contrast to earlier technological developments where progress meant hardware improvements. Today, there is fierce competition in the field of software. There is also always a risk of software becoming outdated quickly, as better versions flood the markets. Software is also vulnerable to piracy and is relatively easily copied. Therefore, it is essential for software to get some protection under Intellectual Property Law. This is needed to not only protect the financial interest of the owner but also to keep up the spirit of creativity and innovation.

The question posed now is that under which IP Law such software will be protected. The answer to this is a bit dicey. These laws were not developed prior to the increased prevalence of software in our daily lives. Software falls in a grey area between Copyright and Patent and hence protection can be sought under either of these two regimes, subject to conditions. The Computer programs can be protected under Copyright, as writing of a software or program is like just writing of any literary or artistic work. The issue with Copyright protection though is that it applies only to way of expression and not the idea, procedure, or mode of operation. In today’s technologically advanced world it becomes very easy to dodge such protection. Further, the doctrines of fair use and reverse engineering are also applicable in case of copyrights.

Patent law provides better protection to software, but the real challenge here is in getting the patent granted. For protection under the Patent law, novelty, inventive-step, and industrial usage are the criteria. Software, which in itself has no physical manifestation similar to the traditional idea of a patentable device, is the subject of many varying interpretations as to its’ patentability. In the manifestations of patent law which allows software patents, the code itself is not patentable but a certain method or algorithm to reach a desired end-result is what is patentable which, provides a higher degree of security than copyright. In case of India, according to The Patent Act, 1970 a software alone cannot be patented. It can be patented only when combined with hardware. Other nations have less strict requirements- the EU technically does not grant software patents but grants protection to the comparable “computer-implemented inventions.” The USA allows for patenting of software so long as it has significant novelty. The limits of this have been prescribed and restricted by various US Supreme Court decisions such as Alice Corp. v CLS Bank International.

Despite granting higher security, there are certain issues associated with patenting of the software. Theoretically speaking each patent should be novel and must have an inventive step. In the case of software, the algorithm to reach the desired end-result is not known to anyone except the programmer who keeps on updating it and records for the same are rarely available publicly to be used as prior arts. Along with this, the issuing of broad or vague patents also restricts the progress in development. Due to all this, instances of defensive patenting have also cropped up. This kind of patenting is unnecessarily used by companies to avoid litigation costs and hassles in future and has the added side-effect of stifling innovation in competitors.

These issues result in a dilemma. The protection of an inventors’ right is important, but there are considerable downsides to this protection in the case of software. Intellectual property is a relatively recent right, coming into prominence only after the marketplace of ideas started to become more and more important. Perhaps it’s time to re-examine existing laws, and to frame separate, special laws to deal with software. This could be made with the aim to both promote innovation and to stifle the aggressive business strategies implemented by developers with a disproportionate amount of resources.   

Author: Imran Rizvi, Legal Intern at PA Legal.

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