INTRODUCTION

“Fighting patents one by one will never eliminate the danger of software patents anymore than
swatting mosquitoes will eliminate malaria.”
- Richard Stallman

In this era of third industrial revolution1 and globalization, highly developed and complex
software have taken up the global market forming the foundation of trade and businesses across
the world.2 The software industry has witnessed enormous growth scenarios and has become a
crucial part of the modern world making it extremely necessary to provide legal protection and
security to these inventions and their inventors as well. New inventive technologies and their
usage in networking and boundariless businesses has led to a scenario where more emphasis is
on protection of interests of individuals who are connected to the business and thus placing more
concern on individualization. These industries and businesses based on electronic technologies
need protection for the tools that are involved in running it i.e. Software.
Like many other Intellectual Properties, Software also has recourse to various Intellectual
Property Rights, specifically Copyrights and Patents. However, whether Software should be
patented or copyrighted is a matter of extensive debate across countries because different nations
have different approach as to what could be the best intellectual property right under which
software could be protected.3

Some people including academicians, interested business bodies, companies and professionals
vigorously argue against the emergence of software patent.4 On the contrary, people in favour of
this cause argue that there is no substantial reasoning behind not awarding patent rights to new,
unique and unobvious software programs.5

1
Jeremy Greenwood, The Third Industrial Revolution: Technology, Productivity, And Income Inequality, American
Enterprise Institute for Public Policy Research, (1997).
2
Duncan M. Davidson, Protecting Computer Software: A Comprehensive Analysis, 1983 Ariz. St. L. J. 611 (1983).
3
Daniel Gervais, The Trips Agreement: Drafting History and Analysis (London: Sweet and Maxwell, 1998).
4
Robert P.Merges, Software and Patent Scope: A Report from the Middle Innings, 85 Tex. L. Rev. 1627 (2006).
5
Martin Campbel Kelly, Not All Bad: An Historical Perspective on Software Patents, 11 Mich. Telecomm Tech. L.
Rev. 191 (2005).
The major debatable topics in relation to Software Patents are- first, whether software can be
considered as a patentable subject matter and second, what could be the scope of the same.
Different jurisdictions have different views and approaches in this regard and hence differences
arise.6 This paper is an initiative to highlight those differences in opinion by constructing a
comparative analysis of the software patenting laws of various nations, both in the past and at
present, and also to suggest a solution to the problems and disputes arising out of them. The first
part of this project work deals with the comparison of evolution of software patent laws in
different jurisdictions followed by other two parts- comparison of contemporary laws on
software patents and opinion regarding uniform laws on software patents- and a concluding note.

6
Syrowik, D.R, Cole, R.J., “The Challenge of Software- Related Patents: A Primer on Software- Related Patents at
the Software Patent Institute”, The Michigan State Bar Journal, (June 1994).
 STATEMENT OF PROBLEM

While we are in the age of rapid industrialization, globalization and technology taking up the
entire world market, the tools involved in these technological advancements, especially computer
software, have been a source of constant disputes across nations and among individual owners.

The major problems involved with the protection given to Computer Software are, firstly,
whether computer software can be considered as a patentable subject matter and should be
granted patent rights. This issue has been a debatable topic since a very long time because
countries like USA and Japan allow Patent rights on computer software programs. On the other
hand, other jurisdictions like the European Union are still in the process of deciding the fate of
patent rights on Computer Software.7

Another problem involved with Software Patent is that of non-uniform laws across the globe
with respect to the scope of Software Patent rules and regulations. For instance, USA grants
patent rights on computer software per se but India grants patent rights to software in connection
with novel hardware only.8 This is another issue of great debate and cause of many international
disputes.

RESEARCH METHODOLOGY

OBJECTIVES

 To construct a comparative analysis about the evolution of software patenting laws in

different jurisdictions.
 To analyze the contemporary standing of different countries with respect to software
patenting laws.
 To formulate an opinion regarding uniformity of software patenting laws across the
world.

7
Adrain Stere , Software Patent Considered Harmful, (2006).
8
Id.
 SCOPE AND LIMITATIONS

The project covers the concept of software patenting and analyses the legal framework of
different jurisdictions with regard to the legal status of the same. For the said purpose, the paper
analyses the definitions, evolution and contemporary standing of software patenting laws across
different nations. The research work has been directed towards a thorough understanding of the
concept of software patenting and the legislatures granting the same in various countries. It is
nevertheless made clear herein that the comparison is amongst American, Japanese, European
Union laws and Indian Laws. The laws of other common law and civil law countries are not
compared herein.

RESEARCH QUESTIONS

 How has software patenting laws evolved across various economies in the world?
 What is the present scenario of the patenting legal framework with respect to software
patents in various jurisdictions?
 Whether there should be a uniform legal system recognizing and granting software patent
rights across the globe?

HYPOTHESIS

There should be a uniform legal method of granting patenting rights on computer software per se
on a global arena.

CHAPTERISATION

 Evolution of Software Patent Laws: This chapter gives a brief idea about the concept of
Software Patent, initially, and then goes on to make a detailed comparative analysis about
the evolution, background and history of legislations and laws with respect to the same in
different countries across the world.
  Contemporary Standing of Software Patenting: This chapter casts light upon the legal
framework related to patent laws across various nations in the present day world thus
making a comparative study of the same.

 Uniformity of Software Patent Laws: This chapter discusses the extensively debatable
topic about a uniform framework of granting patent rights over computer software across
the globe in the need of granting solutions to various disputes and issues arising out of it.

SOURCES OF DATA

The research methodology adopted in this project is that of Doctrinal. For this purpose, many
books were reviewed and out of that, the most important one . Several important case laws and
articles have also been reviewed.

MODE OF CITATION

The mode of citation adopted herein is the Uniform Bluebook Citation (20th Ed.).
 RESOURCES

BOOKS

 Gregory A. Stobbs, Software Patents, (Second Edition, Aspen Publishers, 2007).

 Daniel Gervais, The Trips Agreement: Drafting History and Analysis (London: Sweet
and Maxwell, 1998).

ARTICLES

 Adrain Stere , Software Patent Considered Harmful, (2006).

 Vol. 20, Ravindra Chingale and Srikrishna Deva Rao, Software Patent in India: A
Comparative Judicial and Emperical Overview, Journal of Intellectual Property Rights,
210-222, July 2015.
 Dinesh Kumar, Software Patent: Background, Discussion and Illustration of Harm,
(2006)
 Syrowik, D.R, Cole, R.J., “The Challenge of Software- Related Patents: A Primer on
Software- Related Patents at the Software Patent Institute”, The Michigan State Bar
Journal, (June 1994).

STATUTES

 The Patent Act 1970 (India)

 United States Code
 European Patent Convention
 Patent Act 1959 (Japan)