Expert Opinions on Software Patents

Manish Srivastava

CTO, eGov Foundation

“ In the past few decades India has shown how open innovation in software and information technology can accelerate development goals, by transforming access to public services. The creation of open source digital public goods and infrastructure in multiple spheres is leading to new growth pathways that the rest of the world is emulating. Now we are witnessing the advent of Artificial Intelligence that can further accelerate development and economic growth. It is important to ensure that access to such critical information technologies is open for all to innovate on and are not locked behind patent walls.

Tarunima Prabhakar

Research-lead and Co-Founder, Tattle

“ The last two decades have firmly established that property in FOSS software, defined as a right to distribute, results in rapid innovation and more resilient infrastructures. Patents are premised on the right to exclude and are especially ill-suited for software where simultaneous conception and execution of ideas are the norm, and products grow through rapid iteration. Patents, instead of incentivizing innovation, impose a legal construct mismatched with the materiality of software production and slow down innovation. India needs to build on its legacy of defending against spurious use of IPR not only to spearhead the cause of equitable development, but to also ensure that it continues to grow as a technological powerhouse.

Padmashri DB Phatak

Professor Emeritus, IIT Bombay

“ One of the most profound concepts in mathematics, zero, was evolved in India. The zero is one of the two pillars that the binary system stands upon. This binary system is the foundation of the modern computer industry. Centuries of sharing and building upon each other’s ideas has brought us to an era of tremendous technological progress.

We see the same kind of sharing, collaboration and innovation in the global open source community. When we were working on building systems for India’s Light Combat Aircraft, we benefited immensely because of the availability of open source software.

The term “patent” itself originates from the Latin word “patere,” which means, “to lay open.” In the modern era, patents became a state granted monopoly over an invention for a limited period of time, in return for disclosure of the invention. The aim was that inventors would get a defined period of time in which they can exploit their invention. Upon expiry of the patent term, the invention flows into the commons and all of society can benefit from it. We can draw a few conclusions from the above.

Firstly, our lawmakers have clearly said that software is per se (or intrinsically) not patentable. Amongst all patentable subject matter, our lawmakers correctly kept software out of the ambit of patentability through Section 3(k) of the Indian Patents Act. Secondly, only software has a large and flourishing open source community. Most innovation in software is happening in the collaborative world of open source where people voluntarily open up the source code. While open source software is a public good, freely available to all, software patents are a private good available only to a few. India has benefited hugely from open source. Therefore, for pragmatic as well as principled reasons, we must keep software out of the realm of patentable subject matter.

Prof. Aaditeshwar Seth

Professor, IIT Delhi and Co-founder, Gram Vaani

“ The need for patents is often justified as providing an incentive to innovators, but the FOSS movement has demonstrated over the decades that people do not need monetary incentives to innovate - the joy of discovery, the passion to build something meaningful, and the satisfaction of creating positive social impact, have emerged as stronger motivators.

Being able to openly share software enables it to evolve and improve through the eyes and labour of a wider community of developers; software patents not only come in the way, they also emphasize the wrong values of self-interest and private gain over the values of cooperation and solidarity.

To deal with the immense challenges of inequality, the climate crisis, poverty, and others, the world needs to embrace movements that bring such values to the forefront, but software patents are antithetical with what we need today. If developers, or technologists more generally, are to be incentivized in any way, I would bet that many of us would want to lay down use restrictions rather than property protection - use restrictions to prevent the products of our labour from being used for exploitation of the poor, domination of others, or instrumental use to benefit the powerful.

Dr. Kailash Nadh

CTO, Zerodha

“ The ability to program freely is important for innovation. When developers write software, they combine countless methods and techniques into one software program, just as musicians combine hundreds of notes to make a song. If monopolies are granted to programming methods in the form of software patents, the very act of creation and innovation can become illegal. Software is adequately protected through copyrights and trade secrets, and there is no need to grant monopolies to programming methods. In keeping software out of the realm of patentability, India has so far avoided the poor choices made by other countries. I am confident that our policy makers will keep it that way.

Parminder Singh

Director, IT For Change

“ Patents are a rent-seeking device from a pre-digital era. Software is the very fabric of a digital society, and encompasses its basic functionalities. Privatizing the functionalities in software would privatize the entire digital society. It will be worse than the feudalistic society of the past because the digital feudal lords will be extremely few, remote, and largely in one or two countries globally. AI, with its immense power and the emerging central role in our economies and societies, is a good case to look at. AI is a mix of software and people’s and communities’ data. Patents on the software part will be employed to fully control AI, and through it the whole of the world, by a tiny elite. Why would India want to go that route? Our highest policy priority should be to preserve our sovereignty by disallowing patents based rent-seeking from software, platforms, and AI. At stake is the very design of the digital age, and the place of fairness, justice and equity in it.

Rahul Kulkarni

Chief Technologist, Samagra

“ Innovation has evolved over the past few decades from being an individual genius, first-mover advantage sport that stifles new competitors (think patents) to a cooperative, collaborative festival of innovation that celebrates good-first-issue contributors and experts alike (think open source).

Just look around - every piece of software we use daily is built and run using free and open source software (FOSS). It is ironic that open source contributors often struggle monetarily to keep their projects alive while the big corporations spend unimaginable amounts on lawyers, first to file patents written in language no one can understand and then on lawsuits to enforce them. If the same money could be distributed to the open source community, we’d have a lot more software built for social good. Just look around - every piece of software we use daily is built and run using free and open source software (FOSS). It is ironic that open source contributors often struggle monetarily to keep their projects alive while the big corporations spend unimaginable amounts on lawyers, first to file patents written in language no one can understand and then on lawsuits to enforce them. If the same money could be distributed to the open source community, we’d have a lot more software built for social good.

Software patents is an oxymoron - software is a timeless scaffolding structure built over centuries of innovation in mathematics and logic, while a patent is a one time invention assigned to an individual or a corporation to help protect their commercial interests. Just imagine if addition and subtraction was patented by A, while multiplication and division was patented by B and when C tries to invent ratio and proportion, instead of helping C, A and B sue C for using their patent. Unfortunately, that is the world we are evolving into in software.

Jaijit Bhattacharya

President, Center for Digital Economy and Policy

“ Software Patents are one of the vehicles for blocking competition unfairly through low quality patents, leading to a situation that I had termed as "digital colonization". As companies in the developed economies lose their manufacturing prowess, they are using patents as a potent tool to control global value chains. The balance of power in software patents is held by organizations in the developed economies who have acquired thousands of patents on basic functions like machine-to-machine communications, common e-commerce procedures and many other fundamental computing techniques.

With their deep technical expertise and legal firepower, we will soon have MNCs file a flood of patent applications in the Indian Patent Office. Like Indian states that signed treaties with the East India Company, Indian software developers will have to sign treaties and pay royalties to patent holders to do even the most basic computing functions that they implement freely today. India has a vibrant software ecosystem, almost 100,000 startups that include 100+ unicorns and is a pioneer in Digital Public Goods that address the challenges of attaining the Sustainable Development Goals. All the hard work and success we have gained in IT over the last two decades could be jeopardized if we allow software patenting. Therefore, we must learn from our history of colonization, and protect our interests by rejecting software patents in India.

Sashank Kumar

Founder and Managing Director, Razorpay

“ Free and Open Source Software (FOSS) has played a key role in India’s successful start-up story. It has democratized innovation, learning and entrepreneurship in India. It has led to increased privacy and security, improved stable software designs, and decreased costs while allowing a user to innovate, improve and re-distribute their work. To think of it, most of India’s digital presence is built using the base of FOSS.

Software is the building block of India’s growing digital presence. Allowing patenting of software will hinder the growth of India’s start-ups and its software developers. It will disallow them from using software for the larger public good. FOSS has provided opportunities to less privileged talented minds from smaller cities and villages with no access to expensive proprietary software. We have an opportunity to continue building a vibrant ecosystem for FOSS innovations.

Historically, India has always favored a liberal intellectual property regime. It is only correct for the policy makers to allow India to be the space for innovation, freedom and competitive entrepreneurship by taking a stand against software patents.

Sharad Sharma

Co-founder, iSPIRT

“ Software patents will hinder the growth of Indian startups and India’s Digital Public Goods (DPG) ecosystem. Over the last decade, we have seen the number of Indian startups grow exponentially. Almost all of them are built using open source software that is royalty free. Startups have flourished because they have grown in an environment where big companies cannot cut short their growth through patent litigation, and we must keep it that way.

India has also pioneered the creation of DPGs for citizen services. In the process, we have created world class innovations like the Unified Payment Interface. Our goal is that people around the world should benefit from these innovations. We have therefore not patented and monopolized these technologies. It would be a travesty if Indian startups and developers have to pay royalties on software methods and techniques because that goes against our ethos of collaboration and sharing.

As a software products think-tank, iSPIRT believes that software patents are a recipe for litigation and not innovation. Therefore, India should take a very firm stance and not allow software patenting in India.

Apar Gupta

Co-Founder and Director, Internet Freedom Foundation

“ About two decades ago, Bill Gates and our former president A.P.J. Abdul Kalam had a disagreement while walking in the Mughal Gardens that garland Rashtrapati Bhavan in Delhi. In our former president’s words, “spread of IT which is influencing the daily life of individuals would have a devastating effect on the lives of society due to any small shift in the business practice involving these proprietary solutions”. This accurately captures the threat posed by software patents to an environment for digital innovation that helps advance the constitutional rights of every Indian. Presently, India does not grant patents to software, and rightly so, since patents could result in the creation of gatekeepers that would reduce reach and access. Open access to knowledge is the bedrock of any developing country. It has been at the centre of the tussle between copyright holders and people seeking open access to copyrighted materials for educational and research purposes as can be witnessed in the ongoing matter with regard to websites like LibGen and SciHub in the Delhi High Court. A similar fate may also be borne by granting patents for software which would then mire innovative software in litigation. This threat requires a clear and principled stand in refusing the grant or the enforcement of any software patents. It is essential that India continue these sound public policy choices and avoid the mistakes made by others.

Dr. Vikram Vincent

Founder, Freethought Labs

“ Software patents, like the earlier patent system, has out-lived its usefulness. For a healthy economic production environment, we need a system that prevents inherently monopolistic concepts from dominating.

Prof. Rahul De'

Dean Programmes & Professor of Information Systems, IIM Bangalore

“ Many of the recent developments in AI systems in the world are driven by open source software that allows for widespread use and sharing. This enables it to be used by developers around the world, and makes it the key resource for innovations in nearly all technological advances currently.

Patents protect the effort of individual inventors and are helpful in cases of, for example, pharma products that take years to develop and bring to market. In such examples, it makes sense to enable inventors to recover their time and investments from patent protection. Software today is rarely built in isolation, it is invariably built with tools, packages, code modules and standards that were developed earlier and may be in popular use. Patenting software that is built in this manner makes no sense, as the originality is in question. Further, the software thus developed and patented cannot be used for further innovation, as is the case with most open source software.

India has seen explosive growth in digital products and services, much of which is built with open source, non-patented software. This growth must not be curtailed by a software patent regime that enables big-tech multinational firms to file hundreds of patents, using their extensive resources, to restrict and curtail software innovation.

Dr. Ajay Shah

Co-founder, XKDR Forum

“ We recognise the importance of fostering innovation in society, which motivates the case of patents as (a) This constitutes publication and not secrecy and (b) This gives a temporary advantage to the innovator. Patents and compensation for the innovator have also supported the separation between the innovator who may be in a research organization vs. the commercialisation which may be in a normal firm.

The global experience with patents and software has, however, not been a good one. All too often, software patents (and the associated "patent thickets") have been used by established firms to enhance their position in the market at the expense of smaller firms. The time horizons involved in conventional patenting such as 20 years are out of touch with the speed of development in the field of software.

Removing software patenting is not tantamount to removing protections and financial incentives for innovators. Innovators have plenty of commercial opportunities in the modern world, including a head start on launching products in the market. On balance, it is better to then rely on all these market mechanisms for obtaining adequate incentives for innovation, alongside ample philanthropic funding for open source software development. Once these elements are in place, the balance of logic shifts against software patenting.