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The Myth of Patent Driven Innovation

This is a minor variant of my article that appeared in The  Hindu on the 8th of April.

http://www.thehindu.com/opinion/columns/innovation-needs-no-patent-protection/article8447592.ece

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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 primarily from two groups. The first is a small  subset of the legal fraternity , whose primary concern seems to the potential reduction in patent litigation (no patents, no patent litigation). The larger legal community does not seem to share these views. It is puzzling that the legal community is more concerned about innovation in the computer industry than engineers in the industry ! The other group comprises of  MNCs selling proprietary software products and perplexed by the fast changing world of collaborative open source.  

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 startups, product companies and research organizations, who are in the forefront of innovation, have widely welcomed the guidelines, having never been interested in patent protection. iSPIRT( Indian Software Product Industry Round Table), a think-tank that has 800 software product companies as its members, has welcomed the new guidelines. This lays  to rest  the myth of the guidelines being detrimental to Startup India.
It is illustrative to note that the 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 royalty free 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.


Innovation is happening in India, primarily because of the lack of distraction from patents. I am the technical lead for the SHAKTI processor program at IIT-Madras, which is creating open source mobile and server processors  to replace proprietary processors. University of Berkeley (which originated the open and patent free  RISC-V standard), University of  Cambridge and a host of other academic institutions and companies are our  co-conspirators. I am also the author of the lightstor storage standard and our  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. InMobi’s Falcon open source platform is just another example among many.
The Indian software service companies, barring Infosys, have maintained an understandable silence in public. On one hand the attractive world of patent free, open source beckons, a world that is the future of the Indian services industry, since it provides the ideal blend of product innovation and services. But the still lucrative relationship with  legacy MNCs is difficult to let go. This relationship will not allow public opposition to software patents. Contrary to public opinion,  the larger service companies have always been innovators, especially in the areas of e-governance and financial technologies. The pioneering work done in Unix by the likes of HCL, TCS and Wipro in the 80s has unfortunately been forgotten.  I sympathize with their position but hope they will support the new CRI guidelines publicly.
The supporters of the new CRI guidelines include a range of academics, organizations like Society for Knowledge Commons, Free Software Movement of India, Software Freedom Law Centre (SFLC) and iSPIRT, Software startups and product companies. The Patent office has been unfairly criticized of coming under the influence of SFLC and the bogey-man of a “foreign” NGO has been used to scare monger; the support by a huge  number of Indian organizations has been conveniently downplayed as were the efforts of the foreign organizations who lobbied against Indian interests.  The world of  open source owes a lot to Eben Moglen who founded SFLC and was one of the key persons behind the GNU General Public License (GPL).  Linux and Android, (and by inference India’s mobile revolution), exist in their current form because of Eben’s GPL 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 it arrived 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. The Govt. of India, the various State governments, other Governments like Germany and large corporates like NYSE and BSE,  who  by the act  of wholeheartedly supporting open source, have implicitly voted against patents. Aadhar, the GST Network and Mygov.in are all open source based.


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 15000+ e-commerce patents (2010) in the US alone, it is not possible to eliminate the risk of a patent infringement lawsuit. Frivolous lawsuits by US patent trolls account for nearly 38% of all patent litigation in the US. McDonald's and 400 other entities have been  served notices for infringement of a patent on a software method.  The problem of software patents thus 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 Organization for Nuclear Research, committed the Web’s fundamental technologies, including initial web-serving and web-browsing programs, to the public domain. The web as we know 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 World Wide Web Consortium (W3C), which advances and standardizes the technology of the Web, has required  its recommended technologies in its standards be available royalty free with respect to all patent claims of all entities participating in standards-making.  
The current generation innovators - various open source foundations like the Mozilla, Linux and Apache Foundations, Facebook, Ebay, LinkedIn, Tumblr and innumerable other startups -   all share the same credo, royalty-free  open source. Our lab’s operating system research could not have happened without the open source Rust language from Mozilla. Tesla’s opening up of its patent portfolio, in an area where patents are valid and needed, is illustrative of a technology world that is embracing collaboration and moving away from patents.
And where will the new breed of Indian startups come from? 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 US, 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 focused 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. The real  blame for the confusion in India software technology policies  falls on me and my  fellow Indian scientists and engineers. With a few honourable  exceptions,  we have abdicated our responsibility in helping the Government evolve policies, thereby allowing opinions from the non-technical world to dominate.


Comments

  1. Nirav Shah5 December 2020 at 13:57

    What do you think about the patents of IC/chip manufacturing processess? If they are on the verge of becoming synonymous to nuts and bolts, should such processess also be made available to common knowledge or does it have any characteristic/benefit in staying as intellectual property?

    ReplyDelete
    Replies
    1. Anonymous5 December 2020 at 18:51

      Another pertaining to logic is not patentable. So processor logic design, fpga code etc is not IP. Anything related to physical design or processes is of course subject to patents.

      Delete
    2. Nirav Shah10 December 2020 at 19:42

      Yes the latter part. Physical design, method of manufacturing, etc. Also Machines made by companies like ASML, etc. would be patented in parts. So does the narrative apply to all of these as well in the future where semiconductor chips are produced in increasing quantities?

      Delete
  2. trademarkservices18 February 2022 at 04:06

    You have given great content here.Patent Lawyer Sydney I am glad to discover this post as I found lots of valuable data in your article. Thanks for sharing an article like this.

    ReplyDelete

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