In my opinion Biliski is not a decision which favors the exclusion of all the software patents. The FSF claim of ending the software patents is entirely wrong. According to Biliski the software patents which don’t transform a physical entity into some other form and are only restricted to the softwares which run on general purpose computing machines may be excluded from patentability. In my opinion the software’s which require higher execution speed requires the development of high speed peripheral devices which can communicate at a much faster rate with the microprocessor. This development process may in turn require the development of new and better microprocessors which transform the raw data collected from the external world to a desired form for making useful! decisions. The need to perform the work in less time leads to the development of better softwares which can run on better and fast computing machines. Generally the softwares are claimed as an entire system which may claim the new processor and faster peripheral devices such as new harddisk (secondary storage unit) specifically designed for running the particular application software. Therefore patenting software leads to the development of better hardware machines or better computing machines, in other word the development of software and hardware goes together to achieve the goal of making better machines. In Biliski decision the computing machines which transform a certain physical entity into another form are not excluded from patentability. The softwares which are merely implementing an abstract idea on the pre- existing computing machines and not transforming a physical entity to some other form are not patetable. In other word the decision of Biliski is starting poi! nt to claim such devices and apparatus which can perform the w! ork on p hysical entity in less time and transform into another form are patentable subject matter.Such devices may invlove the use of general purpose processors for carying out the desired work in the apparatus or device.

• By Vipin Kumar, Attorney

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The Difference between a general purpose processor and a computer lies in the fact that general purpose processor might be programmed to perform a specific function for example in a embedded system such as washing machine or car security system, medical instruments, rocket prupulsion systems. In such systems bare minimum resources are used to take input from the external world, process the input through the processor and give the output signals.In such systems time might be critical factor for performing the required function (which is not the case in a computer.) Whereas in a full fledged computer there all facilities available for user interaction (which might not be present in application specific systems comprising a processor with the required level of instruction execution speed). The input devices are mouse and keyboard having three own processors for giving input to the computer\’s processor.The ouput device is monitor displaying data with the help of graphics processor present on the motherboard of the computer.

• By Vipin Kumar, Attorney

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Netherland\’s legal system is based on Civil laws unlike ours which is based of the English Common Laws. Though the principles of corporate law for both the systems are same, yet the entities which can be incorporated and their procedure varies. As we are aware that their incorporation is done by a notaries. A BV is a private company and an NV is a Public company. For the NV you would need to take permission from minister of justice, before incorporation. The board meetings can take place every day depending on the articles, but the AGMs have to take place every year esp. for the approval of the Financial statements. There are no ROCs, but Chamber of Commerce (COCs) which maitains all records. They also have Foundations (Stichtings and STAKs) and Limited Partnerships (CVs, VoFs, etc.), which are a bit different a concept for Indian Lawyers. Still I have found that Indian corporate/Company Law is very traditional and needs to change its way of working ..which is the need of the hour today, though our Indian corporate law and most of the law is based on English Law..it has somehow not been able to amend and shoulder the fast growing Legal scenario compared globally. Its the end of 2009 and ROC/MCA is still thinking about E-stamping, whereas in UK the incorporation itself is done online..and then we say our Legal system is based on English Law.

• By Sunayana Puri, Attorney

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Is soft ware (Computer Programs) patenting allowed in India??? A patent protects an invention The law across the globe requires that an invention must be : • New or Novel • Involving a technical step • Capable of industrial application A patent grants the inventor an exclusive right to commercially exploit an invention for a limited period, in lieu of inventor making it available to general public. Software has been instrumental in growth of each and every field, be it science, mathematics, industry, art, literature. Its impact can now be felt in every aspect of our lives, so it is hard to ignore its significance.. In USA, patenting software is as easy as getting a patent for a peanut butter (Yes, United States Patent and Trademark Office, USPTO, has granted a patent for that too). In Japan also, patenting of software is readily done. In Europe the law is still in developing stage In India, Law has taken its own course, from a “for” to “against” direction. From the days of Patents and Designs Act, 1911, when there was no such provision of Patenting a Software to current law of Section 3 of Indian Patent Act, 1970 (as amended in 2002), where it expressly bars the Patenting of Software Programmers per se, we can see a step ahead approach but an approach making less business sense for Indian Corporate Sector. An Ordinance was promulgated on December 27, 2004, increasing the scope of software patenting. However, due to political pressure the debatable provision of Controversial Bill was dropped. In India, however current position is again back to stage where software can not be patented, unless drafted in a manner that may pass the scrutiny of Patent Examiner. Until a uniformity could be seen the current standards across the globe, parties will keep looking for alternative means to protect their software. I feel software, the need of which in each and every field be it science, mathematics, industry, art, literature is Software has been instrumental in growth of each and every field, be it science, mathematics, industry, art, literature is growing so should be easily allowed to be patented.

I would welcome your comments on the same.

• By Amarjeet Kaur, Attorney

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In my opinion software are patentable subject matter because high end software\’s which control the working of any apparatus, mechanical machines, electrical machines involve sending (digital) signals to the connected device and receiving digital signals from the device in order to take input from the device and giving output to the device. To develop the input output signal transmission mechanism involves the innovative creation of interfacing circuits and sensors which collect the data of events happening in the external world and process it in order to perform the desired work. We can say that software programming involves the knowledge of the working of the whole device whether it may me mechanical device, electrical device, electronic device, medical device etc. Making a machine work properly involves developing the software code which implements the communication protocol of the concerned device. The communication protocol may be different for n number of devices. By way of example we can say that the work performed by such softwares cannot be done by a human because it may involve sensing of high temperature and switching off the fuel injection into the combustion chamber. This particular work may be performed with such a high speed that only a computer software can control such apparatus. The computer software should have speed higher than the \’rate of combustion of fuel\’ than only it can measure the speed of the combustion in combustion chamber. The software can measure the \’rate of combustion\’ if the execution speed of the computer machine is! sufficiently higher than the real world events (in this case the rate of combustion). The need to capture the high speed events in the real world triggers the creation of high speed computer softwares which in turn triggers the innovation of high speed computer machines.

• By Vipin Kumar, Attorney

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What a change in how you incorporate a company? I think it is going from bad to worse to worst. Indian bureaucracy knows how to grapple you and you cannot ignore them.

Before the incorporation of Company was done online, there were only 6 steps (including name search), but now with online incorporation there are 11 steps. This is classic example that bureaucracy in India is very smart and it is like frank-stein monster that you press them on one-side and they rise from the other side. I hope our Indian Prime Minister is seeing this department to know that how even digitization is not successful in India. Mindset has to change and not technology alone.

• By Harpreet Oberoi, Attorney

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Antipiracy is big efforts being launched by Movie, Song, Book Publishers and Software Industry. Today I read in the newspapers that the Movie and Song industry lost more than Rs. 4000 crore last year due to Piracy. How do these people calculate damages? No one knows. Perhaps when they seize a CD, they take full value of the CD and consider it as a loss to film industry. They may also presume that this CD will be watched by atleast 4 people (at home) and then they multiply the damages 4 times. Do they consider that if the pirated CD was not available people would not necessary go with their families to watch that movie. In this manner the basic underlying assumption that a CD causes loss equivalent to 4 people is without basis?
May be somebody educate me on this is calculated (in India or any other country).

• By Harpreet Oberoi, Attorney

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“The Protection and Utilization of Public Funded Intellectual Property Bill, 2008″ (Public Funded IP Bill) (1) in the upper house of Indian Parliament marks a major paradigm shift in the way the outcome is expected of the public funds by researchers in a university or an institute of higher education. The Public Funded IP Bill (1) makes it mandatory for such grant recipients for time-bound disclosure and IP protection of all R&D supported with federal funding. The Indian Act was introduced with laudable objectives as: to ensure that benefits of public funded research reach the public, create an environment in which wealth can be generated from the University system and forge more closer academia-industry partnerships etc. (2) This Bill, patterned on the Bayh-Dole Act (BDA) of the US, has attracted considerable debate both in India and abroad (3-5) due to its perceived and potential adverse impact on the R&D, innovation and public interest, especially on the health sector.
Thankfully the Indian law if not replica or tries to copy the third revision of Patent Law in China. The New China law that has come into force on October 1, 2009 stipulates that inventor should be adequately compensated for its inventions. The law has been borrowed from the laws of Germany and Japan.

The Indian Law actually is applicable only when there is an involvement of public money. What is public money is debatable? A company raising money on stock through a Public Issue is a public funded company? This issue has to be dealt with?

• By Harpreet Oberoi, Attorney

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I was reading very interesting book by Richard Branson, Chairman of Virgin group of Companies. He talks about protecting brands and how it is difficult & important to maintain its global reputation. I think our own high profile brand owners, M/s Reliance brothers, should read this book and try to learn that how important reputation of a brand is? These brothers have spoilt the brand name of Reliance and cannot recover from it. Too pity.

By Harpreet Oberoi, Attorney

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Link: www.thelawyer.com

I find an interesting article reported in the Lawyer. The legal process outsourcing is gaining ground day-by-day. But it is not easy as it looks like.  Three things, I find missing in this article:

a)      The article has not shown how much or supervision was done in having this work. There must have been training and back & forth done between Clifford Chance lawyers and their outsourcing partners. How much percentage is that should form a part of costs that is required for outsourcing.

b)      What quality of work was shipped over to India for “Legal Process Outsourcing”.  Many law firms would be responsible for maintaining a simple legal database or docketing systems for their clients. Instead of getting a paralegal to do this work in Western Country, they could hire graduate or post-graduates to do the work remotely from India.

c)         What was the kind of work shipped to India? Was it regular/ repetitive work that was shipped?  If the work is not regular and only one-time or project based, maybe it is not worth sending it to India?

d)         How many Indian Attorneys were required to replace one-Attorney work in U.K. A true ROI can only be calculated if we get this data right? In engineering outsourcing we have been able to get this almost 1:1. But it came with a lot of experience and at unprecedented costs.  Will Legal Process Outsourcing go through the same cycles?

Be that as it may, I am not trying to criticize or undermine the efforts. This is also a fine development and that the law firms in western countries can now focus with something higher in the value chain. Let us hope that this trend goes up and up (like its IT counterpart in India).

By Harpreet Oberoi, Attorney

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