This Article is written by Anchal Singh & this article discuss the concepts of Software Patents in Today’s World 8. Working of Patents and Compulsory License.
Introduction
History of software patent
The Paris Convention
The Trips Agreement
Working of patent and compulsory license
National Laws for compulsory license
Conclusion
Introduction
The complex relationship between software patent, patent and compulsory licenses is a testament to the ever- evolving nature of technology and legal frameworks that seeks to balance innovation and economic growth. As we continue down the digital highway, software patent is shaping our technological future paramount, requiring a delicate balance to ensure a thriving technological sector. The market provides a widespread range of software such as graphic design, spreadsheets, video editing software, word processor etc. The emphasis of software has been shaped differently throughout the trends of the market; the requirements of the market is in demand more now than ever as mobile phones are becoming a significant part of everyday life of people. The popularity of smartphones, tablets, laptop and constant internet access directly increases the demand of software patents. Software patent is the property right that provides protection to any computer programs or performance as it does not have a proper legal definition which has been a controversial topic from the start. The worldwide software market currently valued at an astounding 589.6 billion in 2022 has been influenced by this complex relationship. It is a money market where if you are capable, you will earn billions with that being said most companies are running to protect their intellectual property.
The Berne convention played an important role in providing protection for the software patent which stated protection of literary and artistic works, 151 countries took part in it. When software is created, it is provided a certain measure of protection which can last from the living life of the creator till after his death. Patent however, plays a different role as compared to software. It is rather difficult to obtain patent, for one to obtain patent certain procedures have to be fulfilled. In order to obtain patent for one’s creation in other countries also, application for that every country needs to be applied according to the Patent Cooperation Treaty. Each country has their own laws for the grant of patent; thus, each country will provide patent according to their own needs. Patent has a complex nature to be obtained but most software developers choose it as it provides more protection than others.
History of software patent.
The story of software patent started in the early 1950s with the invention of the integrated circuit invented by Robert Noyce and Jack Kilby. Software had a different meaning back than in comparison to today. At that point of time software was designed specifically for certain computers. After the 1950s which was also recognized as a digital revolution, the 1960s and 70s raised the question of whether the computer programs were copyrightable or not. In 1964 after much controversy, registrar of copyrights started to recognize copyright protection for software programmes and codes. After all the mess regarding the copyright issues came the PC revolution that was led by certain individuals such as Steve Jobs, Bill Gates, etc. who provided certain designed operating system that would perform any task. With the development of the software programs from word for windows to Microsoft in the late 1980s and 1990s, the issues kept rising regarding the copyright and the protection it provides from copying of the literal word but not the broader version. It was decided in the case of Lotus v. Borland case that copyright was no longer adequate enough to provide valuable security to software programs, thus the shift from copyright to patent law was necessary which extended the protection of innovative value and legal protection as required.
The Paris Convention
Article 5A of the Paris Convention allows for the protection of industrial property by mandatory licencing. The government only grants the licence specified in the article as the sole right in certain situations. The agreement established the procedure for granting compulsory licences; typically, these licences are granted based on the government’s or any court’s right to require the necessary work rather than on the basis of inadequate labour.
The TRIPS Agreement
A number of regulations pertaining to forced licencing are formulated under the World Trade Organization’s Trade-related Aspects of Intellectual Property Rights. Under the heading “other use without authorization of the right proprietor.” Article 31A states that, in cases involving public health, it is permissible to grant a compulsory licence for the export of drugs or medicines to a country or locations where it is not possible to produce or manufacture them. A waiver regarding paragraph 6 mechanism was submitted on August 30, 2003, by the European Union, Norway, Canada, Japan, the United States, New Zealand, Switzerland, Iceland, and Australia. The waiver stated that developed countries may encounter challenges in manufacturing or obtaining the product within a short timeframe, as not all countries possess the capacity. These countries require to import active ingredient or the medicinal product to fulfil the demand. Therefore, it was stated in the Doha Declaration in Article 5b that these developed countries will have the right to grant compulsory license and the freedom to determine the grounds on which such licenses are to be granted. Further Article 5 c also established that each member has the right to determine the circumstances present are to be constituted as a national emergency or any other circumstance of extreme urgency to grant the license or not.
Working of patent and compulsory license.
The principal aim of patent law was to furnish legal safeguarding and incentivize inventions to bolster the nation’s technical sector while simultaneously stimulating the economy. Patent law was created as a result of copyright’s inability to satisfy some requirements. It imposed a legal duty on the part of the patent holder to prevent third parties from utilising his creations without first obtaining permission. But in very rare circumstances, if specific conditions are met, a third party will be granted a compulsory licence, which would provide them a non-exclusive right to use the invention without the owner’s permission. Therefore, it is stated that any administrative, judicial or governmental body only with accordance to national laws by determining the factors that plays a significant role can grant the third party a compulsory license.
National Laws for compulsory license
Every country’s national law is reflected and influenced by the Paris Convention (article 5A) and the Trips agreement (article 31 and 31b), although every country has their own individual jurisdiction which may vary the aspect and details of grant of compulsory patent licensing.
UNITED STATES
The concept of compulsory license is not included in the America Invents Act, since 2012. There have been other special laws introduced such as Atomic Energy Act and Plant Variety Protection Act which facilitates in providing compulsory licensing. Cases that have been proved to be similar to those of a compulsory license is “Unites States v. Hartford- Empire co (1942) and United States v. United States Gypsum Company (1950) – Antitrust enforcement.”
INDIA
Compulsory license in India is provided on the basis of access of medicine to all on certain grounds. The patent Act of 1970 provides for such compulsory license as under reasonable requirements of the public such as:
- If the patented invention has not met the requirements of the public.
- If the invention is not available to the public at a reasonable affordable price.
- If the invention is not being worked on within the territory of India.
This method provides proper use of compulsory license while keeping a balance between the motivation for innovation as well as providing easy access to medicines. In the case of “Bayer Corporation v. Natco pharmacy Ltd. (2013)” one of the most significant case for compulsory license, a kidney cancer drug Nexavar was sold on high price by Bayer Company, Natco pharma was provided compulsory license to produce and sell it on a more affordable price. The verdict was in favour of Natco Pharma as they provided important medicine to the common public at an affordable price.
CONCLUSION
In conclusion the importance of software patents is essential to the advancement of the technology sector, to save the innovations and motivate the new inventions, protection of software through patent strengthens one’s country. If the exclusive right is owned and only provided to the patented owner especially in the medicine sector it will only result in a monopolised market where high prices for drugs deprives the poor. Compulsory licence eradicates it to some extent by providing an exceptional method to the third party to help the poor through affordable and reasonable prices. After many issues this powerful tool has been given to the government through the Paris convention and the TRIPS agreement to deal with crisis of the country. In the need of hour, the evolvement of the laws regarding software patent everywhere in the world will only promote advancements in technological area.
REFERENCES
- https://iprlawindia.org/wp-content/uploads/2021/03/1970.pdf
- https://ipindia.gov.in/writereaddata/Portal/IPOGuidelinesManuals/1_36_1_2-draft-Guidelines-cris-28june2013.pdf
- Ahuja, V.K. (2015) Intellectual property rights in India. Gurgaon, Haryana, India: LexisNexis.
