Granting software patents is fundamentally a bad idea
The Linux Foundation, a leading FOSS organisation hosts 300+ FOSS projects. The most recent estimates have valued the projects it has created using 1.15 billion lines of code at $54 billion
Mumbai: Recently, Venkatesh Hariharan, Public Policy Director at the Free and Open Source Software (FOSS) Foundation, pointed to a particularly absurd patent. It offered to protect a piece of software and was granted by India’s patent office. This rather ridiculous application is intended to be used to build an online voting system. The document begins by reading like any other well-written legal document but then there’s a twist. It begins by explaining the drawbacks of the existing system in language that can be described as nothing else but idiotic. Sample this: A voter cannot know about to cast their vote, which candidate has got it.
The document then goes on to describe the ‘Novel features of our invention’. Here are some samples, reproduced verbatim.
-Voting will be free, fair, transparent & no doubt on this online process, by tracking method of our vote cast.
-After declare result, the voter’s know about their vote cast, which candidate to got it.
-Voters could be voting from anywhere in the world at the date of cast vote.
-No make to stand in long queue.
While it sounds ludicrous, two things emerge when interpreted by sharp lawyers. The first is that this ridiculous description made it past India’s patent office when it ought to have been disqualified straight off. This is because, in a democracy, the right to vote is a fundamental one. And second, if this patent is implemented by any government in power, Indian voters will have to pay for the privilege to vote.
But that is not the point of this argument. This is intended to highlight what the issues with software patents are. All evidence suggests that granting software patents is fundamentally a bad idea. Perhaps, copyrights may be a better idea. To unpack the difference, imagine a chef creating a unique recipe; copyright protects the written recipe, not the idea of the dish itself. You can make a similar dish, but cannot publish the chef’s recipe as your own. In the realm of software, copyright protects the specific code — how the algorithm is implemented — but not the underlying idea or algorithm itself.
Patents, on the other hand, offer a broader scope of protection, covering inventions and the ideas behind them. Returning to our culinary metaphor, if recipes were patentable, a chef could potentially monopolise a particular combination of ingredients or cooking techniques, preventing others from creating similar dishes without permission. In the software world, patents can cover the underlying methods or processes that software uses, effectively monopolising a concept or an approach to solving a problem.
Then there is the material evidence itself that Hariharan points to on why the FOSS model is critical for India. The Linux Foundation, a leading FOSS organisation hosts 300+ FOSS projects. The most recent estimates have valued the projects it has created using 1.15 billion lines of code at $54 billion. Similarly, the Apache Software Foundation estimates that the 350+ projects it hosts have created FOSS worth $22 billion. These projects cover the most fundamental technologies from cloud computing, distributed computing, big data and analytics, blockchain technologies and many others. The software prowess India acquired over the last few years was on the back of riding software built elsewhere.
But now that India has built its powers, and is making its presence felt the world over, he suggests we imagine a world ten years out. What if Indian software giants such as TCS, Infosys, Wipro and other leading companies which are full of smart people start patenting their work?
It will only be a matter of time before global entities that have been around for much longer start retaliating. For instance, IBM, HP, Google, Amazon, Meta and Apple may insist that Indian companies start paying up. Take something as simple as the one-click shopping that most of us have come to take for granted. It is patented and the creators can insist every Indian company that uses it must pay to deploy it. The outcome will be a geopolitical battle. That is when it will begin to hurt. This is why it is in India’s long-term interest to stop dishing out absurd patents like the one mentioned at the start of this column.