Details for the law geeks.
This is great news for India and the world! I’ll bet countries that don’t have software patents will out-compete those that do.
I’ll bet countries that don’t have software patents will out-compete those that do.
Indeed that is the hope. If nothing else, at least we’ll have a data point of a country that have tried, and figure out what can be improved in future implementation of a similar legislature.
Though briefly going over the guidelines, I see some obvious clauses that can be used as a loophole (with an obligatory IANAL, of course). In particular (emphasis mine):
If the patent application relates to apparatus/system/device i.e hardware based inventions, each and every feature of the invention shall be described with suitable illustrative drawings. If these system/device/apparatus claims are worded in such a way that they merely and only comprise of a memory which stores instructions to execute the previously claimed method and a processor to execute these instructions, then this set of claims claiming a system/device /apparatus may be deemed as conventional and may not fulfil the eligibility criteria of patentability.
Case in point, “worded in such a way” implies that if some patent lawyer is clever with the wording, what is otherwise a software patent can slip through unscatched!
I don’t doubt the intelligence of the patent office clerks, but it’s unlikely they’re well trained to deduce whether or not a described device is actually operating “in memory” only versus a device that requires a patentable hardware component.
Logically, how is a hardware patent more patentable then a software one? Difficult to invent / investment needed to create / etc.
What’s an argument for the discrepancy?
I don’t think anyone is under the impression the discrepancy is logical; I’ll go out on a limb and say that nobody involved with the law in a professional capacity expects that. There has been a history of court cases (at least in the US), which have moved the line of what is patentable back and forth. Distinctions have been drawn both in statute and in court rulings, and I don’t feel competent to summarize which of these are presently “in use”, since even that is a complicated question.
Early rulings, prior to the widespread public understanding of what sofware was, concluded that software was no more than a concrete expression of an algorithm, and that although its concrete expression is copyrightable, algorithms are simply expressions of mathematical truth (this was the court’s position; of course many programmers will disagree), and as such are not invented by humans.
So, you asked for “an argument” and I can give that, but I’m afraid I can’t speak as to the logic of it. :)
Hardware often also needs the means of manufacturing. (e.g. being able to create chips of a smaller size)
The general idea of patents was to encourage people to open up their inventions and means to the general public in exchange for the protection. It this context, that still makes sense. Much effort is involved in finding those methods.