Protection of Computer Programs under

Intellectual Property Rights

By

Dr.P.R.L.RAJAVENKATESAN
 Computer Programs
 Sec.2(o) of The Copyright Act, 1957 defined “literary
work” includes computer programmes, tables and
compilations including computer(databases).
 Sec.2(ffb) of The Copyright Act, 1957 defined
“Computer” includes any electronic or similar device
having information processing capabilities.
 Sec.2(ffc) “Computer programme” means a set of
instructions expressed in words, codes, schemes or in
any other form, including a machine readable medium,
capable of causing a computer to perform a particular
task or achieve a particular result.
 Case Laws
 Computer Associates International v. Altai. 982
F.2d 693 (Fed.Cir.1992).
 Whelan Associates, Inc. v. Jaslow Dental
Laboratory, Inc., 797 F.2d 1222(Fed. Cir.1986).
 Lotus Development Corp., v. Paperback
Software International ,740 F.Supp 37 (D
Mass.1990).
 Computer Programs
 In the highly innovative field of computer
technology, inventions are expensive to develop
but inexpensive to copy.
 Computer industry has historically divided its
endeavors into three types: hardware, software,
and algorithms.
 Hardware consists of the physical devices
themselves, the collection of transistors in
groups of integrated circuits “chips” and their
wired interconnections.
 Computer Programs
 Software, the code that ultimately resides in the
memory chips, tells the microprocessors and
other hardware what to do. Software is the
coded instructions which control the way data is
processed.
 Algorithms are the purely abstract routines for
accomplishing certain processing goals. for
example, the algorithm for listing all of the
powers of 2 (2,4,8,16,etc) is to multiply 2 with
the previous number on the list to produce the
next number on the list.
 Computer Programs
 An algorithm is an unambiguous specification
of a conditional sequence of steps or operations
for solving a class of problems.
 Either software or hardware can express any
algorithm. For example, software can express an
algorithm in a programming language; hardware
can express it in an integrated circuit that, upon
activation, would automatically generate the list
on its output pins.
 Computer Programs
Case Laws
 Gottschalk v. Benson, 409 U.S. 63 (1972).
 The Supreme Court construed the patent law to
exclude protection for an algorithm that
converted binary-coded decimal numbers into
pure binary numbers; it emphasized that the
algorithm was not a “tangible” process. The
conversion process can be done without the aid
of a computer, and then stating that “mental
process. . . are not patentable”.
 Computer Programs
Case Laws
 Parker v. Flook, 437 U.S. 584 (1978)
 The mathematical formula can not be
patentable. The Court found it unpatentable
that formulae are laws of nature rather than “the
kind of ‘discoveries’ that the (patent) statute
was enacted to protect.”
 Computer Programs
Case Laws
 Diamond v. Diehr, 450 U.S. 175 (1980)
 The patentability depends on whether the subject
matter is a mathematical formula or an industrial
process.
 The Court held that patent laws could protect software
linked to a physical process. As long as the patent
application links the computer software to “a structure
or process which, when considered as a whole, is
performing a function which the patent laws were
designed to protecte.g., transforming or reducing an
article to a different state or thing”.
 Computer Programs
The Patent Act,1970

 What are not inventions

Sec.3(k) a mathematical formula or computer
programe per se or algorithms.
It is unfortunate that India is yet to get an
opportunity to decide it through judiciary with
regard to patenting of computer programs.