Draft of letter i am submitting today.
TO Office of the Controller General of Patents, Designs & Trade Marks Boudhik Sampada Bhawan S.M. Road, Antop Hill Mumbai – 400 037.
Dear Sir,
We introduce ourselves as an embedded systems Company engaged in design and manufacture of products centered around embedded systems. We have been in business since 1990. Our products include Electronic Security Systems, Telematics systems, Biometric Access Control systems, Remote displays etc. These products are combinations of microntrollers, memory, FPGAs, plds, sensors and software (in the form of code, fuse maps and microcode).
We have serious concerns regarding proposed amendements to the patent laws which will allow patenting of combinations of hardware and “software”.
I have tried to present our objections in as simple a manner as possible. Our objections are as follows: 1.Any physical device wether described as general or special purpose, f dependent on an additional input in the form of code (machine code, binary, fuse map, micro code etc.) to give the device it's uniqueness, is by this very requirement of code, a reprogramable general purpose machine.
2.Such code may exist internal to the device in ram, rom, fusemap, etc., or external to the device.
3.Such code maybe required to be set into the device once as part of the manufacturing process or intilization process (Commonly known as One Time Programmable), or at any time during the life of the device (Flashable or field programmable).
4.It is well known practise to create microntroller boards with FPGA. It is even possible to create the entire board in a single device (called System on a Chip or SOC) These boards are given unique characteristics by reprogramming the internal memories and or fusemaps. As part of cost reduction techniqes, such reprogramming may be restricted to occur only once.
5.The uniqueness of these boards / devices is an attribute of the code, not the device itself. Such code is amply protected by copyright laws.
6.Such devices maybe claimed to be special purpose by it's "inventors" simply because they choose to use it for that particular purpose.
7.Examples of Special purpose devices used for entirely different purposes than originally intended. Sound cards: These devices are used specifically for recieving andreproducing sound. However sound cards are also used as oscilloscope, or a Software Defined Radio, Or a radio modem, simlpy by using different software. The sound card may be used external to a PC, in conjunction with a microntroller board (yet another special purpose device). Set Top Box: These devices can be used as controllers for a variety of purposes - motor control, robotics, Home automation etc. again merely replacing the code inside the device changes it's capabilities completely.
8.Therefore any claimed invention that has code in any form as part of it's claims, irrespective of the location of the code or the method of induction into the device, should not be allowed to be patented. The merits of the invention must exist without any dependence on the code. Any requirements for protection of code is amply met by existing copyright laws.
9.Should the proposed amendemts be allowed, it would provide scope for misuse, as it is possible to reproduce the functionality of a device in combination with some code, either completely in hardware or completely in software or some intermidate combination. Such amendements would therfore stifle innovation and progress as it would require everbody engaged in creative endevours using modern electronics to identify any probable infringment.
We submit that the Section 4.11.6: [...]The claim orienting towards a "process/method" should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the "software per se" is differentiated from the software having its technical application in the industry.[...]
Should be reframed to read as
[...]The claim orienting towards a "process/method" irrespective of wether it contains a hardware or machine limitation shall not be permitted. Technical applicability of the software claimed as a process or method claim, even if defined in relation with the particular hardware components shall not be permitted. Thus, the "software per se" or “Software in conjunction with a machine limitation” shall not be permitted.[...]
Section 4.11.8: The claims relating to software programme product are nothing but computer programme per se simply expressed on a computer readable storage medium and as such are not allowable. For example, if the new feature comprises a set of instructions (programme) designed to control a known computer to cause it to perform desired operations, without special adoption or modification of its hardware or organization, then no matter whether claimed as "a computer arranged to operate etc" or as "a method of operating a computer", etc., is not patentable and hence excluded from patentability.[...]
Should be reframed to read as
Section 4.11.8: The claims relating to software programme product are nothing but computer programme per se simply expressed on a computer readable medium and as such are not allowable. For example, if the new feature comprises a set of instructions (programme) designed to control a known computer to cause it to perform desired operations, irrespective of special adoption or modification of its hardware or organization, then no matter whether claimed as "a computer arranged to operate etc" or as "a method of operating a computer", etc., is not patentable and hence excluded from patentability.[...]
Thanking you Yours truly
J. T. D'souza