Most of the public objections to the new Computer Related Invention (CRI) guidelines issued by the patent office, clarifying that only software involving novel hardware is patentable, have come either from the legal fraternity which is terrified about the loss of business (no patents, no patent litigation), or from multinational corporations (MNCs), with business models based on proprietary software, trying to stay relevant in the fast-changing world of collaborative engineering and open-source software. These guidelines, according to them, will supposedly result in the stifling of innovation, for reasons unexplained. It is not as if the law has been changed; the guidelines merely seek to clarify the intent of the existing Patents Act. On the contrary, Indian start-ups, product companies and research organisations, which are at the forefront of innovation, have widely welcomed the guidelines, having never been interested in patent protection. This lays to rest the myth of the guidelines being detrimental to Startup India.
Technologies we use in our day-to-day lives — Web browsers, Facebook, Twitter, Linux-based mobile phones and set-top boxes, online shopping — are all based on open source and do not rely on patent protection. Even Apple, which enforces its design patents with vigour, has always used open source at its core. It is also ironic that while the Linux foundation itself does not support patents, some companies that make use of Linux have opposed the CRI guidelines.
Open-source is the future Innovation is happening in India primarily because of the lack of distraction from patents. The government-funded SHAKTI processor programme at IIT-Madras is creating open-source mobile and server processors to replace proprietary processors. The LightStor storage system lab is creating brain-inspired processors, next-generation mobile phones, micro-kernel operating systems and secure networking standards. iSPIRT’s work in creating an open Indian stack for banking, unencumbered by patents, is an effort that can radically transform the banking and payment industry.
Indian software service companies, barring Infosys, have maintained an understandable silence in public. On the one hand, the attractive world of patent-free open-source software beckons, a world that is the future of the Indian services industry, but the still lucrative relationship with legacy MNCs is difficult to let go. This relationship will not allow public opposition to software patents.
The supporters of the new CRI guidelines include a range of academics, organisations like Society for Knowledge Commons, Free Software Movement of India, Software Freedom Law Centre (SFLC) and iSPIRT, software start-ups and product companies. The patent office has been unfairly criticised of coming under the influence of SFLC and the bogeyman of a “foreign” NGO has been used for scaremongering. The world of open source owes a lot to Eben Moglen, the man who founded SFLC and one of the key persons behind GNU General Public License (GPL). Linux and Android, and by inference India’s mobile revolution, exist in their current form because of his work. The GPL has been the most effective weapon in the fight for truly free software, and it has been key in breaking abusive monopolies that have long dominated the field of software. The patent office took a balanced view of all petitioners before arriving at its opinion. The CRI guidelines are merely a recognition of what the world at large has concluded, that patents make no sense in the world of software.
Patents as a drag The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another’s patent have no clear means of avoiding it. With 15,000-plus e-commerce patents (2010) in the U.S. alone, it is not possible to eliminate the risk of a patent infringement lawsuit. Frivolous lawsuits by U.S. patent trolls account for nearly 38 per cent of all patent litigation in the U.S. The problem of software patents ends up increasing the cost of software for all of society.
The history of the software industry shows that innovation flourished long before software patents. The key technologies of the Web have been embodied in patent-unencumbered software. CERN, the European Organisation for Nuclear Research, committed the Web’s fundamental technologies, including initial Web-serving and Web-browsing programmes, to the public domain. The Web exists because of this contribution. The flexibility and sophistication of the Web we use today depends on freely available scripting languages, such as Perl and PHP, invented by developers who deliberately did not seek patent monopolies for them. Facebook runs on PHP. The current generation innovators — various open-source foundations like the Mozilla, Linux and Apache foundations, Facebook, eBay, LinkedIn, Tumblr and innumerable other start-ups — all share the same credo: royalty-free open source.
The new breed of Indian start-ups will come from the world of big data and machine learning, from the world of mobile apps and e-commerce, and the world of cloud computing. The underlying platforms for all these areas are patent-safe, open-source software tools.
Given the lessons of history and considering the amount of litigation that software patents have created in the U.S., the new CRI guidelines will help India from going down this slippery slope. As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. It is time we ignored software patents and focussed on the business of innovation. India will have to find its own way to innovate, both in software and patent law, unencumbered by external advice and ignoring legal crutches from foreign jurisdictions.
G.S. Madhusudan is Principal Scientist at IIT-Madras and a technology/management consultant.
