Apply the intellectual property framework to computer software, to the institutional context in which academic research is conducted, and to the decided cases that define the boundaries.
This is the final lecture of Unit VI and of the course content. It brings the whole unit to bear on the one artefact every student in the room actually produces: software.
These notes consolidate three syllabus topics — IPR in computer software, IPR in educational institutes, and case studies in IPR. Sections 2—8 are software; Sections 9—11 are institutions; Sections 12—14 are the courts.
One sentence carries the first half: software is textually a literary work and functionally an invention, and no single IP regime is fully adequate to it.
Section 8 and Section 15.3 are the practical ones. You will choose a licence for your own project this semester, and the reasoning in Section 8.3 is how to justify it.
1. Learning Outcomes
- Explain the legal basis for copyright and patent protection of software under Indian and international law.
- Differentiate the subject matter, scope and limitations of copyright versus patent protection for software.
- Classify and critically evaluate the major software licensing models used in industry.
- Analyse the philosophical, legal and commercial implications of open-source licensing.
- Explain the rationale and structure of institutional IP policies, and the functions of a technology transfer office.
- Apply the landmark decisions to practical scenarios involving software IP disputes.
2. Why Software IP Is Unique
Software occupies a peculiar position in intellectual property law for three structural reasons:
- It is textually a literary work. Source code is written in formal languages that resemble, in expressive character, technical writing or music. This makes it a natural subject for copyright.
- It is functionally a technological invention. A program causes a machine to perform novel operations, solves technical problems, and may produce patentable technical effects. This brings it within patent law.
- It is dual-layered. Both expressive elements (source code, UI design) and functional elements (algorithms, architectures, system behaviour) coexist within a single artefact. No single IP regime is fully adequate.
- Incentives for innovation and investment in software R&D.
- Access to foundational computing knowledge for cumulative research.
- Disclosure of inventions against the protection of trade secrets.
- Standardisation for interoperability against exclusion for proprietary control.
The WIPO and TRIPS frameworks left much of this balance to national legislatures and courts, producing the significant jurisdictional divergence met in Unit V and in Lecture 3.
3. Copyright Protection for Software
3.1 Legal Basis
In India, computer programs are protected as literary works under Section 13(1)(a) of the Copyright Act, 1957. Section 2(ffc) defines a computer programme as “a set of instructions expressed in words, codes, schemes or in any other form… capable of causing a computer to perform a particular task or achieve a particular result”.
Internationally, software has been protected under the Berne Convention (1886), with explicit recognition of computer programs as literary works under the WIPO Copyright Treaty (WCT), 1996.
3.2 Subject Matter — the Idea–Expression Dichotomy
Copyright protects the expression of an idea, not the idea itself — the dichotomy established in Baker v. Selden, 101 U.S. 99 (1879).
Protected: source code, object code, the specific arrangement and selection of code, screen displays in some jurisdictions, and preparatory design material.
Not protected: the underlying algorithm, the idea, the function performed, the system architecture as an abstract concept, and methods of operation.
3.3 Scope, Limitations and Term
The owner has the exclusive right to reproduce the program in any material form; issue copies to the public; perform it in public; communicate it to the public; and translate, adapt or arrange it — which includes porting, converting or extracting parts.
Fair dealing under Section 52 permits private and personal use including backup copies; non-commercial research, criticism or review; testing, debugging and ensuring interoperability — reverse engineering under specified conditions; and use by educational institutions and libraries.
Term: the lifetime of the author plus 60 years (Section 22). For anonymous, pseudonymous or government works, 60 years from the date of publication.
3.4 Advantages and Limitations
| Four advantages | Three limitations |
|---|---|
| Automatic acquisition — no registration required; protection arises on creation and fixation | Does not protect ideas, algorithms or functional concepts — competitors may independently develop functionally equivalent code |
| Low cost — substantially cheaper than patent prosecution | Cannot prevent independent creation, only copying |
| Long effective term — coverage typically exceeds the commercial life of most software | Difficulty proving copying of non-literal elements — structure, sequence and organisation |
| Broad subject matter — almost any software qualifies |
If a competitor reads your published paper, understands your algorithm, and writes their own implementation from scratch, copyright gives you nothing. They have taken the idea, which copyright does not protect, and not the expression, which it does.
That gap is the entire commercial case for a software patent.
4. Patent Protection for Software
4.1 Legal Basis
The grant of patents for software has been one of the most contested developments in modern IP law. Under the Indian Patents Act, Section 3(k) disallows patents on “a computer program per se or algorithms”. However, amendment and judicial interpretation allow patenting where software produces a technical effect or constitutes a technical solution to a technical problem.
In the United States, Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), established the two-step Alice/Mayo framework: (1) whether the claim is directed to a patent-ineligible abstract idea, and if so, (2) whether there is an “inventive concept” transforming it into a patent-eligible application.
4.2 Subject Matter
Covered: the novel, non-obvious and useful method or process implemented by the software; the technical effect produced — improved database query performance, an image processing method, an encryption technique; and the system architecture when tied to a specific technical implementation.
Not covered: pure algorithms or abstract mathematical methods; business methods implemented solely on a generic computer; and computer programs per se without a claimed technical contribution.
4.3 Five Requirements
- Novelty — not anticipated by prior art.
- Inventive step — not obvious to a person skilled in the art.
- Industrial application — capable of industrial use.
- Disclosure — sufficient to enable a person skilled in the art to perform the invention.
- Exclusion avoidance — must not fall within Section 3(k) or other exclusions under Indian law.
4.4 Advantages and Risks
Three advantages: protects the functional and conceptual aspects copyright cannot; allows infringement claims against independent re-implementations; provides a strong barrier to entry and potential licensing revenue.
Four risks: cost and time — prosecution is expensive and may take years; uncertain scope, particularly under Section 3(k) and Alice; the disclosure obligation, which requires full publication and may benefit competitors; and validity challenges — software patents are frequently litigated and sometimes invalidated.
5. Copyright versus Patent — Comparative Analysis
| Dimension | Copyright | Patent |
|---|---|---|
| Legal basis in India | Copyright Act, 1957 — s.13(1)(a), s.2(ffc) | Patents Act, 1970 — s.3(k) carve-outs apply |
| Subject matter | Expression — code, UI, structure | Functional invention — process, technical effect |
| What is protected | The specific written form of the code | The idea, method and underlying technical contribution |
| Acquisition | Automatic upon creation | Requires application and grant |
| Term | Life of author + 60 years | 20 years from the filing date |
| Cost | Low; registration optional | High — filing, prosecution, maintenance |
| Disclosure required | No | Full disclosure in the specification |
| Independent creation defence | Yes — innocent independent creation is not infringement | Limited — if it falls within the claims, independent creation still infringes |
| International harmonisation | Berne Convention; WCT | TRIPS Article 27, with national exclusions |
| Suitability for software | Strong, universally accepted | Conditional; subject to the technical-effect test |
In practice developers rely primarily on copyright for everyday protection. Patent protection is pursued strategically for: foundational algorithms with broad commercial value; methods that solve novel technical problems; software-implemented business methods meeting the inventive-step threshold where permitted; and building a defensive or offensive patent portfolio.
The independent creation row is the one asymmetry that justifies the cost of a patent.
6. Software Licensing Models
A software licence is a legal instrument governing use, modification, redistribution and reverse engineering, determining the relationship between licensor and licensee.
| Model | Characteristics | Examples |
|---|---|---|
| Proprietary (closed-source) | Licensor retains all rights; limited permission to use; source not disclosed. Terms typically prohibit modification, redistribution and reverse engineering | Microsoft Windows EULA, Adobe Photoshop |
| Freeware | Distributed at no cost; source not disclosed; modification and redistribution generally prohibited; licensor retains copyright and commercial rights | Various utilities |
| Shareware | Try before you buy — a licence fee is expected after a trial period | WinZip, historically |
| Commercial / enterprise | Volume, per-seat, per-CPU or subscription licences; typically include SLAs and indemnification | Enterprise software generally |
| Software as a service | Accessed over the internet without local installation. The licence grants access rather than ownership; economics shift to recurring subscription revenue | Salesforce, Microsoft 365, Google Workspace |
| Dual licensing | The same software under two licences — one open-source, one commercial. Use freely under the open licence, or buy a commercial one to incorporate it into a proprietary product | MySQL (GPL + Oracle commercial), Qt |
| Creative Commons | Designed for creative works; sometimes adapted for documentation and ancillary content. Not recommended by the FSF for code itself | CC BY, CC BY-SA |
The Lecture 1 distinction applies identically here. Assignment is a complete transfer of ownership, requiring written and in some jurisdictions registered instruments. Licensing retains ownership and grants defined rights.
In employment contexts and academic research collaborations, licensing is typically preferred because it preserves residual rights for the creator.
7. Open-Source Software
7.1 Free Software versus Open Source
Two distinct but largely overlapping movements underpin open-source software.
The Free Software Movement — Richard Stallman, Free Software Foundation, 1983. Defines software freedom in ethical terms through four essential freedoms:
- Freedom 0 — run the program for any purpose.
- Freedom 1 — study how the program works and adapt it to your needs.
- Freedom 2 — redistribute copies so you can help others.
- Freedom 3 — improve the program and release improvements to the public.
The Open Source Initiative — founded 1998. Defines open source by ten operational criteria in the Open Source Definition, focusing on collaborative development and business-friendly licensing rather than ethical freedom.
Free software is a matter of user liberty. Open source is a matter of development methodology.
The licence lists overlap almost entirely — but the two movements disagree about why the licences matter, and that disagreement surfaces every time a project changes licence.
7.2 Seven Major Licences
| Licence | Type | Effect |
|---|---|---|
| GPL (v2 1991, v3 2007) | Strong copyleft | Any derivative work distributed to others must also be GPL; source disclosure required for distributed copies. Linux kernel, GCC, WordPress |
| LGPL | Weak copyleft | Allows linking from proprietary code without forcing that code open. GNU C Library |
| AGPL | Network copyleft | Closes the SaaS loophole — software accessed over a network, not distributed, still triggers source disclosure |
| MIT | Permissive | Use, modify and redistribute in proprietary software, provided the copyright notice is preserved. Very short and business-friendly |
| BSD (2- and 3-clause) | Permissive | Similar to MIT; widely used in academic and embedded systems software |
| Apache 2.0 | Permissive with patent grant | Includes an explicit patent licence from contributors; requires preservation of notices and a NOTICE file. Hadoop, Kafka, Spark |
| MPL 2.0 | File-level copyleft | Modifications to MPL files must be released under MPL, but combining with proprietary code is permitted |
7.3 Copyleft versus Permissive
- Copyleft licences (GPL, AGPL) preserve openness downstream — a mechanism ensuring improvements remain available to the community. Critics argue this discourages commercial adoption.
- Permissive licences (MIT, BSD, Apache) encourage adoption but allow proprietary forking. Critics argue this enables free-riding on community labour.
- Hybrid models (LGPL, MPL) attempt to balance these concerns at library or file level.
7.4 Four Issues in Practice
- Licence compatibility. Not all open-source licences are compatible. GPLv2 and GPLv3 are incompatible in some combination scenarios; code under GPL cannot be relicensed under Apache 2.0 alone. Incompatibility is a major source of legal and engineering complication in large projects, because it constrains which dependencies may be adopted at all.
- Patent retaliation and patent peace. Apache 2.0 and GPLv3 include patent retaliation clauses that terminate the licence if the licensee initiates patent litigation against contributors — making litigation self-defeating and buying patent peace in open communities.
- Trademark issues. Open-source licences do not automatically grant trademark rights. Linux, Firefox and OpenOffice rely on separate trademark policies to prevent misuse of names, logos and identities. You may fork the code freely and still be unable to call the result by its original name.
- SaaS and the AGPL question. The SaaS delivery model reopened the question of what constitutes “distribution” in the internet age. Running modified GPL software as a hosted service distributes nothing, so the disclosure obligation never triggers. The AGPL was designed precisely to close that gap.
8. Choosing a Strategy
8.1 Invention Disclosure Comes First
Conduct an invention disclosure assessment. Even an academic paper establishes prior art that prevents later patenting — including your own. The institutional policy in Section 10 requires it; the absolute-novelty rule from Unit V explains why.
8.2 Claim Drafting after Alice
In the post-Alice environment, patent claims directed at software should recite a specific technical improvement — for example “reduced memory consumption by X percent” — avoid purely functional or business-method language, and tie the claim to a concrete implementation rather than a generic computer.
8.3 The Decision Sequence for a Project
- Copyright — you already have it, automatically, on the code you wrote.
- Disclose — to the technology transfer office, before any paper, poster, demonstration or public commit.
- Choose a licence — copyleft to keep derivatives open, permissive to maximise adoption.
- Consider a patent — only if there is a demonstrable technical effect and commercial value.
Steps 2 and 3 conflict more often than students expect: a public GitHub release is a disclosure. If a patent is plausible, the release must wait for the filing.
9. Why IPR Matters in Educational Institutes
- Public funding and accountability. Most academic research is funded by public agencies, and funders expect returns to society.
- Industry–academia partnerships. Collaborative research with industry requires clarity on IP before work begins, not after.
- The global knowledge economy. Countries compete on innovation indicators, and academic patenting is one of them.
The instrument that resolves all three is a written institutional IP policy, operated by a technology transfer office. Without both, ownership of a research output is decided retrospectively, by argument.
10. Institutional IP Policies
An institutional IP policy is a governing document, typically approved by the Board of Governors or Senate, establishing the rules governing creation, ownership, protection and exploitation of IP generated within the institution. It serves four purposes: clarity about who owns research outputs; motivation through revenue share and recognition; compliance with funding agency terms and statutory obligations; and strategy, aligning IP management with institutional mission.
10.1 Seven Core Components
- Scope and applicability. Defines which activities and persons are covered — faculty, research scholars, post-docs, students, visiting researchers, staff. Most policies apply to all persons using institutional resources.
- Ownership principles. The default rule is that IP created using institutional resources belongs to the institution, with explicit exceptions for: scholarly works (textbooks, articles, lectures), typically the author’s copyright; IP developed entirely outside institutional duty hours and without institutional resources; and IP governed by specific funding agreements.
- Invention disclosure mechanism. Mandates that all potentially patentable inventions be disclosed to a designated office — usually the TTO — prior to any public disclosure, including conference presentations or preprint uploads.
- Evaluation and patenting decision. Criteria include patentability; market potential and freedom to operate; alignment with institutional strategy; and available budget.
- Revenue sharing model. A typical model: inventors 30–50 percent of net royalties; department or laboratory 10–20 percent; the remainder to a central institutional fund supporting further research and TTO operations. A one-third / one-third / one-third split is another common variant.
- Conflict of interest and commitment. Requires disclosure of consulting arrangements, equity holdings in start-ups, and external engagements that may conflict with institutional IP.
- Enforcement and discipline. Outlines consequences for non-disclosure or unauthorised commercialisation.
10.2 Three Comparative Models
| Aspect | United States — Bayh-Dole | European Union | India |
|---|---|---|---|
| Ownership default | University retains | Varies by country; many vest in the inventor or employer per national law | Institution retains, facilitated by Section 30(4) of the Patents Act, 1970 |
| Origin | Bayh-Dole Act, 1980 — let universities retain title to federally funded inventions | National employment and patent law; the “professor’s privilege” survives in some jurisdictions | National IPR Policy 2016 and institutional policies |
10.3 The Indian National IPR Policy, 2016
Notified by the Department for Promotion of Industry and Internal Trade (DPIIT), it sets objectives relevant to academia: promoting a culture of innovation and IP awareness in academic institutions; strengthening the IP ecosystem through TTOs, IP facilitators and technology incubators; and encouraging IP-based start-ups through schemes such as ATAL (Accelerating Technology-based Entrepreneurship and Leveraging) and TIDE 2.0.
11. Technology Transfer Offices
11.1 Concept and Evolution
A technology transfer office is a dedicated administrative unit within a university or research institute that manages the lifecycle of IP from disclosure to commercialisation. The modern TTO emerged in the United States after the Bayh-Dole Act of 1980, which fundamentally changed the relationship between publicly funded research and industry. The number of TTOs worldwide grew rapidly after 1980; the Association of University Technology Managers (AUTM) reported thousands of active TTOs globally by the 2020s.
11.2 Organisational Structure
A TTO typically comprises a director with both scientific and business acumen; patent attorneys or agents who draft, file and prosecute applications; licensing associates who evaluate inventions and negotiate agreements; business development executives who liaise with industry; technology analysts conducting market and prior-art searches; and administrative and finance staff for royalty accounting and compliance.
In India, smaller institutions often consolidate TTO functions within a broader unit such as an incubation centre or research park. Examples include SINE at IIT Bombay; the IIT Madras Research Park and its IP Cell; IPTeL at IISc Bangalore; FITT at IIT Delhi; and IIIT Hyderabad’s Tech Transfer Office, specialising in software and AI innovations.
11.3 Eight Core Functions
- Invention disclosure management. Receives disclosures from faculty, students and staff; logs them centrally.
- Evaluation and patentability assessment. Conducts prior-art searches; assesses novelty, non-obviousness and industrial applicability.
- Patent prosecution. Decides whether to file, drafts the specification with inventors and attorneys, files at the Indian Patent Office and/or under the PCT, and prosecutes through examination.
- Marketing and industry outreach. Identifies potential licensees; prepares non-confidential summaries.
- Licensing negotiation. Negotiates scope, exclusivity, geography, royalties, milestones and sub-licensing rights — the clauses of Lecture 2.
- Start-up and spin-off support. Facilitates formation of start-ups by inventors; negotiates equity and licence terms.
- Royalty distribution and compliance. Manages revenue flow and ensures compliance with funding-agreement obligations.
- Policy advisory. Provides input on institutional IP policy and funding-agreement templates.
12. Landmark Patent Cases
| Case | Year | Jurisdiction | Doctrine at stake | CS relevance |
|---|---|---|---|---|
| Diamond v. Chakrabarty | 1980 | USA | Patentable subject matter | Biotech, bioinformatics |
| Bilski v. Kappos | 2010 | USA | Abstract ideas | Business-method software |
| Mayo v. Prometheus | 2012 | USA | Laws of nature | Computational diagnostics |
| Myriad Genetics | 2013 | USA | Products of nature | Genomic algorithms |
| Alice Corp. v. CLS Bank | 2014 | USA | Abstract ideas | All software patents |
| Novartis v. Union of India | 2013 | India | Section 3(d) — evergreening | Drug informatics |
| Bayer v. Natco | 2012 | India | Compulsory licensing | Pharma technology transfer |
Mayo (2012) supplied the structure and Alice (2014) applied it to software:
- Determine whether the claims are directed to a patent-ineligible concept — a law of nature, natural phenomenon or abstract idea.
- If so, examine whether the additional elements transform the nature of the claim into a patent-eligible application.
In Alice: intermediated settlement was a fundamental economic practice long prevalent in commerce, and generic computer implementation was insufficient to transform it.
The Indian counterweights. Novartis applied Section 3(d) to refuse a patent for evergreening — a new form of a known substance without significantly enhanced efficacy. Bayer v. Natco (2012) was India’s first compulsory licence, granted under Section 84 for the cancer drug Nexavar.
13. Landmark Licensing Disputes
13.1 Microsoft Corp. v. Motorola, Inc. (2012–13)
Facts: Motorola held patents declared essential to the H.264 video codec and the 802.11 Wi-Fi standard — both implemented in Microsoft’s Xbox and Windows products. Microsoft sought a declaratory judgment on the FRAND obligations Motorola owed as a standard-essential patent holder.
Issue: what terms constitute a fair, reasonable and non-discriminatory royalty for SEPs?
Held: Judge Robart determined that a reasonable SEP royalty must be calculated by reference to the value of the patented technology’s contribution to the standard, not the overall value of the standard-compliant product. The court applied the Georgia-Pacific factors — fifteen factors developed in Georgia-Pacific Corp. v. United States Plywood Corp. (1970).
Significance: anchored the smallest saleable patent-practising unit approach to FRAND royalty calculation — the concept met in Lecture 2 — and illustrated the commercial stakes of contributing to standards bodies.
13.2 Ericsson v. Lenovo (2024)
Ericsson sued Lenovo over the licensing of SEPs essential to the 5G, Wi-Fi and H.264 standards, disputing the appropriate FRAND rate and whether Lenovo was entitled to a licence. Significance: FRAND remains a contested frontier in the 5G era, and global disputes increasingly require coordinated resolution across jurisdictions.
13.3 Smith International v. Hughes Tool (1983)
The implied licence doctrine, and the enforceability of assignments executed before filing — examined in Lecture 1.
14. Software IP Litigation
14.1 Lotus Development Corp. v. Borland International (1996)
Facts: Lotus sued Borland for copying the Lotus 1-2-3 menu command hierarchy in the Quattro and Quattro Pro spreadsheets. Borland argued the hierarchy was a method of operation, excluded from copyright protection under 17 U.S.C. §102(b).
Held: the First Circuit held the menu structure was a method of operation and not copyrightable. The Supreme Court affirmed by an equally divided court, leaving the issue unresolved as binding precedent.
Significance: demonstrates that functional interface elements lie at the boundary of copyright; influenced later look-and-feel litigation.
14.2 Apple Computer, Inc. v. Microsoft Corp. (1994)
Facts: Apple alleged that the Windows graphical user interface — elements such as overlapping windows and trash icons — infringed its copyrights. Microsoft prevailed on summary judgment and the case settled.
Significance: confirmed that GUI elements necessary to functional operation are not copyrightable, and set the stage for look-and-feel litigation through the late 1990s.
14.3 Oracle America, Inc. v. Google Inc. (2021)
Facts: Oracle sued Google for copying the structure, sequence and organisation of the Java application programming interfaces when developing Android. Google had copied approximately 11,500 lines of declaring code — method headers and class declarations.
Held: the Supreme Court found that Google’s use constituted fair use.
Significance: the decisive modern authority on APIs and interoperability.
American courts have repeatedly declined to let copyright reach the functional interface — the menu hierarchy, the GUI convention, the API declaration. That reluctance is what makes reimplementation legal, and it is the legal foundation of a great deal of the software industry.
15. Summary and Exam Preparation
15.1 Summary
- Software is dual-layered — expressive and functional — so no single regime fits it.
- Copyright protects expression, automatically and cheaply; it cannot stop independent creation.
- A patent reaches the idea, and so reaches independent re-implementation — at high cost and with uncertain scope.
- Section 3(k) and Alice both turn on a demonstrable technical effect.
- Copyleft preserves openness; permissive maximises adoption; compatibility is a real engineering constraint.
- Institutional policy plus a TTO decides ownership before the dispute, not after.
- US courts have repeatedly declined to let copyright reach the functional interface.
15.2 Revision Checklist
- Definition of a computer program under the Indian Copyright Act — Section 2(ffc).
- Copyright term for software: lifetime + 60 years.
- Section 3(k) and the technical-effect doctrine.
- The Berne Convention and the WIPO Copyright Treaty.
- The Alice/Mayo two-step test for software patents.
- The four freedoms of free software; at least five OSI criteria.
- The major licence families: GPL, LGPL, AGPL, MIT, BSD, Apache, MPL.
- The difference between copyleft and permissive licences.
- The difference between assignment and licence.
- Key cases: Oracle v. Google, Baker v. Selden, Alice Corp. v. CLS Bank.
- The National IPR Policy 2016, and revenue-share models.
15.3 Short-Answer Questions
- Define an institutional IP policy and list four of its essential components. 3 marks
- State the four-step reasoning announced in Mayo v. Prometheus and explain its application in Alice Corp. v. CLS Bank. 4 marks
- Distinguish an exclusive licence from a compulsory licence with reference to the Indian Patents Act. 3 marks
- What is the FRAND doctrine? Identify one case in which it was adjudicated. 3 marks
- Explain the significance of Section 3(d) and its application in Novartis v. Union of India. 3 marks
- Why was Madey v. Duke University significant for academic research? 2 marks
- State the idea–expression dichotomy with a software example. 3 marks
- Distinguish copyleft from permissive licensing, naming two licences of each type. 3 marks
15.4 Long-Answer Questions
- Critically analyse the US Supreme Court’s evolving stance on software patent eligibility from Bilski to Alice. How does this compare with the European “technical character” approach? 12 marks
- Discuss the licensing disputes surrounding standard-essential patents. With reference to Microsoft v. Motorola and Ericsson v. Lenovo, evaluate the doctrine of FRAND licensing. 12 marks
- Examine the doctrinal tension between copyright and patent protection for software, with reference to Oracle v. Google and Lotus v. Borland. What is the optimal IP strategy for an open-source project? 12 marks
- Analyse the implications of the Bayer v. Natco compulsory licence for technology transfer. Can the same logic apply to computer-implemented inventions in India? 10 marks
- Explain the rationale and structure of institutional IP policies, and the functions of a technology transfer office. Illustrate with the Indian context. 12 marks
- Compare copyright and patent protection for software across at least eight dimensions, and advise when each should be pursued. 12 marks
15.5 Applied Questions
- A startup has developed an AI-based fraud detection algorithm. Outline an IP strategy combining copyright, patent, trade secret and licensing considerations. 12 marks
- Two open-source communities wish to merge their codebases, one under Apache 2.0 and one under GPLv3. Identify the legal issues that may arise. 10 marks
- A research paper you have authored includes pseudocode for an algorithm you intend to commercialise. Discuss the implications for academic publication and subsequent patentability. 10 marks
- Compare the approaches to software patentability in India (Section 3(k)) and the United States (Alice/Mayo). What practical advice would you give an Indian software startup seeking patent protection abroad? 12 marks
Name the licence you will release under and justify it. State whether any part of the work is patentable and why. Identify the single disclosure that would destroy that possibility — and when it is scheduled.
16. Suggested Reading
- The Copyright Act, 1957 — read Sections 2(ffc), 13, 14, 22 and 52 directly.
- The Patents Act, 1970 — Section 3(k) and Section 30(4).
- Indian Patent Office. Guidelines for Examination of Computer Related Inventions (CRI), 2017 and 2024 drafts.
- Free Software Foundation. The Free Software Definition — the four freedoms.
- Open Source Initiative. The Open Source Definition — the ten criteria.
- Rosen, L. Open Source Licensing: Software Freedom and Intellectual Property Law. Prentice Hall.
- DPIIT. National Intellectual Property Rights Policy, 2016.
- AUTM. Technology Transfer Practice Manual.
- Oracle America, Inc. v. Google LLC, 141 S. Ct. 1183 (2021); Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014); Baker v. Selden, 101 U.S. 99 (1879).
- Microsoft Corp. v. Motorola, Inc., No. C10-1823JLR (W.D. Wash. 2013) — on FRAND royalty determination.