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09.03.17

LexOrbis is Trying to Sneak Software Patents Into India in Defiance of the Ban

Posted in Asia, Patents at 6:52 am by Dr. Roy Schestowitz

Pay up for legal ‘services’ or else!

Indian money

Summary: The attempts to disguise mere code (or thought processes) as a “device” prevail in the nation which is set to become the world’s largest population in less than a decade

TECHRIGHTS has come across a lot of nefarious lobbying by LexOrbis in recent years. IAM is often the (apparently) paid-for platform, but that’s not always the case.

“It is trying to attract software patent hopefuls, that’s pretty clear based on its writings.”LexOrbis keeps pushing for software patents in India (and lies about these too, as they’re generally not allowed) because it profits from litigation. It is trying to attract software patent hopefuls, that’s pretty clear based on its writings. It’s also attempting to change the law. In addition to this, LexOrbis keeps trying to give tips on patenting software by fooling examiners, basically dodging the rules. This kind of mischief continued in IAM last week, courtesy of Daljinder Pal Singh Parmar who wrote:

Every denial of patentability in cases involving algorithms should be properly justified using a rule of reason analysis, rather than refusal as a category of excluded subject matter being based on a per se rule analysis. This would necessitate claim drafting by restricting an algorithm to a particular application and its use as applied in any manner to physical elements or process steps which should result in the transformation and reduction of an article to a different state or thing.

As a precaution, drafters should avoid reciting algorithms directly or indirectly and refrain from using the term ‘calculate’ in claims. Where algorithms are found to be recited in claims, the invention should be structured and claimed in a manner which makes them an integral part of a larger process, apparatus or device, affecting physical changes or producing a transformed or new physical product ‒ thereby overcoming the IPO’s exclusionary evaluations under Section 3(k). Whether an algorithm as part of a method or process can be patented and how the IPO will treat algorithm-related inventions under Section 3(k) in light of the new guidelines remain to be seen.

See what he is saying? Just don’t call algorithms “algorithms” and avoid words like “calculate” because algorithms are all reducuble to mathematics. Notice the weasel terms he recommends, “apparatus or device, affecting physical changes or producing a transformed or new physical product…”

There’s that old saying that lawyers are basically liars. LexOrbis serves to reinforce that perception.

“The bottom line is, India does not allow software patents. However, firms which profit from other gullible firms that pursue software patents in spite of the exclusion would have us believe otherwise.”As a side note, Kerala, which is known for Free/libre software use (not just GNU/Linux but also freedom-respecting software on top of that), received a mention in relation to SunTec last week. This made a mention of “software products and creating intellectual property and software patents,” even though the concept is rather odd in India.

The bottom line is, India does not allow software patents. However, firms which profit from other gullible firms that pursue software patents in spite of the exclusion would have us believe otherwise. We certainly hope that Indian patent examiners will take note of the above tricks and reject the applications accordingly. Dressing up algorithms as something physical might help fool an examiner or two, but not a court/judge/jury. Innocent people would be harmed by erroneously-granted patents. It’s expensive to fight patents in a courtroom, more so in India.

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