The Gamut of Intellectual Property in the Software Industry

By - GIIP: A pioneer Institute in IP Training | IP Courses | IP Education | IP Program

-Prologue-

Amongst the challenges that are prevalent in the software industry, one of the most contentious ones are the issues related to intellectual property. The controversies have brought the Knights face to face. On one hand there is an increasing need of protecting the blooming software industry and on the other, even a bigger challenge to avoid from ending up  sharing the umbrella of protection   with what has been defined as ‘The non-patentable’. With the increasing   conflicts in the global intellectual property practices in the case of software, there has emerged multiple schools of thought, each providing their own way of how it must be managed.  This paper aims at throwing light on the whole gamut of Intellectual Property practices prevalent in the current software Industry described through various schools of thought. By virtue of this paper, the author intends to share a note of concern amongst those who have a diminished focus on intellectual property, in the Indian software sector.

While most of the firms and Organizations are reluctant to take the slightest of risk in producing their goods, most are less diligent when it comes to intellectual property. As a result the competitors are taking the software developers for a ride. Intellectual Property needs to be addressed not only at the management level, however at all the levels in the hierarchy of an Organization, and across the software Industry.

While the Indian corporate software industry is picking up flame, the issues of Intellectual property on the other hand seem to have been put to a back burner. With the software Industry as a prominent player, in terms of economic growth, time has now come for countries like India to peal and look deeper and address to the issues associated with this sector.

IP - ‘ A kaleidoscope’

In order to see the wide spectrum of Intellectual property protection, it is important to see it from the  different windows of the various schools of thought. One, in the background of technology, the other from a legal prospective and the last (but not the least), from a business prospective.

From a Technological Point of View- It refers to the kind , nature and type of a software(s) prevalent during, or over a period of time with respect to changing trends in technology and the difficulty in defining and setting up appropriate Intellectual Property protection it its context.

From a Legal prospective- It refer to the domestic and global laws defining legal boundaries to technological innovations.

From a Business prospective- It refers to the way the software business in India is conducted and its repercussions on software and intellectual property management.

Software Patenting – ‘A hurdle Race’

Getting a software patented at the Patent Office is no less than a hurdle race for the emerging software developers. Controversies arise over proof of novelty and questions of non-obviousness, leaving behind the software developers reluctant and confused about choosing the right path to take to protect their creativity.  This is more a problem of the patent office than that of the developer. The central test for patentability is inventiveness and much greater  emphasis should be laid on this aspect of the examination process. Patent office examiners should be firm and less inclined to give the benefit of doubt. It is beyond any doubt that there is a tough fight out there for the software developers to get a patent on their software at the patent office, however never the less , the software developers are drifting their way to an easy escape by consistently trying to define their creativity in the ambit of the definition of ‘patentable inventions’.

Typically, Intellectual property right, is the ‘right of the one who invents’. An Intellectual Property protection topology that best fits ‘software’ has had no consensus for over  a decade in India. The degree to which an inventor and an invention can be proved in software will determine the type of protection that will be used by the software developers over the period of time.

Conclusion

As per the present Patent regime, the TRIPS Agreement is not likely to come out with a different perspective on software in the near future. This leaves the software developers with an open battle field to be conquered. Amongst the possible routes like patents,, copyrights, licensing , it is the decision of the software developers to be seen that shall decide the fate of this industry in context of Intellectual Property Protection, over the coming years.

Indian patent examiners have to be in a position to award software patents to a computer program that is not ’a computer program per se’. The tendency for India to keep its intellectual property, whether in the form of copyright, patent or trade secret, will be largely determined by its actual role in the early phases of software development.

Author - Anant Jain (IP ASSOCIATE)

Global Institute of Intellectual Property