Terminological Ambiguity: a stumbling block for the law on software-patents in India

“The limits of my language mean the limits of my world”?

-Ludwig Wittgenstein, Tractus Logico-Philosophicus

?

The question of whether computer-programs are excluded from patentability by Section 3(k) of the Patents Act has been answered, and the law on the point settled, by the High Court of Delhi in two of its judgements, namely: Ferid Allani[1] and Microsoft Technology Licensing[2].

However, a judgement delivered by the High Court of Delhi on 30.08.2024 in Blackberry’s[3] case, appears to contradict the two earlier judgements, and thereby appears to put again into obscurity the interpretation of S.3(k) that had been delineated with clarity by the said two judgements.

?

This article is meant to demonstrate that the reasoning in Blackberry is erroneous and that it falls prey to error primarily on account of a less-than-precise formulation of the relevant terms and propositions involved in the argument.

?

As terms and propositions are to be analyzed, the approach taken in the article is one based on propositional logic. This approach also has the benefit of keeping in sight the crux of the reasoning of a judgement, which otherwise might sometimes be lost sight of, particularly in longer judgements with discursive paragraphs.

?

The Ferid Allani and Microsoft Technology Licensing judgements are treated first; then the ratio of the Blackberry judgment is extracted and shown to be erroneous and contradictory to the two earlier judgments.

?

The common conclusion in Ferid Allani and Microsoft Technology Licensing:

The ratios and common conclusion of Ferid Allani and Microsoft Technology Licensing have been discussed in detail in my earlier article (which can be accessed here).

For the purposes of the present article, the ratio of the two judgments may be stated in the form of a hypothetical syllogism (a syllogism where the minor premise is a categorical proposition and the major premise is a hypothetical proposition) whose minor premise, major premise, and conclusion are as follows.?

Minor premise: This computer-program has a technical effect.

Major premise: If ‘this computer-program has a technical effect’, then ‘this computer-program is not barred by S.3(k)’.?

Conclusion: the conclusion is ‘this computer-program is not barred by S.3(k)’ when the minor premise is true.

Therefore post Ferid Allani and Microsoft Technology Licensing, any judicial proceeding that seeks to determine whether the subject invention based on a computer-program is barred by S.3(k), must necessarily focus on determining the truth of the minor premise. If the minor premise is found to be true, the computer-program is not barred by S.3(k).?

The proposition forming the minor premise can be clarified and understood further by:

1) Substituting the term computer-program by its definition, which is a ‘sequence of computer-executable instructions’. Note that the expression computer in the definition includes in itself both custom-hardware and general-purpose programmable devices (as detailed in the earlier article); and?

2) Viewing the proposition as a subject-predicate relationship. The subject in the proposition is ‘This computer-program’ and the predicate is ‘has a technical effect’.

Three points may be noted here about this predicate (these will be of relevance when the ratio of Blackberry is discussed later in the article):

(i) The predicate is an incidental attribute of the subject; it is not a necessary consequence arising from the very essence of the subject. That is, the predicate is per accidence and not per se (one computer-program might have a certain technical effect, another might not).

(ii) The predicate is not a property of the subject. That is, the predicate is not a necessary concomitant of the very essence of the subject (having a technical effect is not a necessary property of a computer-program; again as an illustration, one computer-program might have a certain technical effect, another might not).?

(iii) The predicate is not a definition of the subject. The test of definition is the convertibility of the subject and predicate. A computer-program may have a technical effect, but the converse proposition that ‘what has a technical effect is a computer-program’ is clearly not true. Therefore the proposition is not convertible and the predicate in it cannot be the definition of the subject.

?

With the above expansion and in view of the subject-predicate relationship, the proposition forming the minor premise in the hypothetical syllogism may be expanded and stated as:

This sequence of computer-executable instructions has a technical effect.

This proposition may be symbolized and referred to as P.

?

Now the proper subject for an adjudication upon the applicability of S.3(k), as discussed above, would be the determination of the truth of the proposition P. That is, the adjudication would be expected to direct itself to determining whether the subject computer-program has a technical effect, and if it does then what is that technical effect. If it has a technical effect, then the computer-program would not be barred by S.3(k).

The judgement in Blackberry, however, attempts to reformulate the proposition P itself and thereby leads itself into error —as discussed below.

?

Errors of reasoning in the Blackberry judgement:?

The Blackberry judgement formulates the point in issue as follows:

“30.? …Accordingly, to analyse the objection of non-patentability under Section 3(k) of the Act, this Court shall proceed to evaluate the patentability of the subject patent application on the basis of the following remaining issues:

Issue 1: Whether the technical contribution of the subject patent is merely a set or sequence of instructions?

Issue 2: Whether the substance of the subject patent is directed towards algorithmic processes?”

Even without adverting to the particular facts of the case, three categories of logical errors are immediately apparent from the formulation itself which make it fallacious:

1. Issue 1: The fallacy of equating an incidental attribute with a definition:

A technical contribution/effect is not a sequence of instructions; a technical contribution/effect is the result of (something produced by) a sequence of instructions. Issue 1 therefore confuses cause with effect.

Substituting the term ‘technical effect’ in P with the term ‘technical contribution’ as used in Issue 1 makes the proposition P read as: This sequence of computer-executable instructions has a sequence of instructions. The proposition P therefore becomes a mere truism, devoid of any further meaning. Therefore Issue 1 as formulated in the judgement has no meaning.

??

2. Issue 2: The fallacy of assuming that what is true of an unqualified statement is also true of that statement when it comes with certain qualifications (secundum quid et simpliciter):

The substance of a subject-patent cannot be directed towards an algorithmic process; an algorithmic process is what is directed towards achieving the substance in a subject-patent. That is, an algorithmic process is the means towards an end, and which end is the intended overall functionality of the subject-patent.?

Further, Issue 2 appears to confuse the usage of the distinct terms ‘algorithm’ and ‘computer-program’.

An algorithm is merely a sequence of steps/instructions in abstract directed towards solving a particular problem. Whereas a computer-program implements an underlying algorithm through a set of instructions written in a programming language (Java, C++, Python etc.) that can be executed on custom-hardware or general-purpose programmable devices. A computer-program therefore is a sequence of computer-executable instructions, and not mere instructions in abstract.

When such a computer-program produces a technical effect upon execution it ceases to be a mere ‘computer program per se’.

Therefore if ‘algorithm’ and? ‘computer program per se’ are barred by S.3(k) in the general (unqualified sense), it does not necessarily follow that the computer-program in a subject-patent is also barred by S.3(k) (in the qualified sense). What needs to be examined is whether the subject computer-program has a technical effect i.e. the truth of the proposition P needs to be determined.

?

3. The fallacy of circular reasoning in both Issue 1 and Issue 2 (petitio principii):

The fallacy of circular reasoning in an argument occurs when the conclusion that is to be proved, or a part of the conclusion, is assumed as true somewhere in the premises of the argument. A use of synonyms usually obscures the presence of part of the conclusion in the premises.?

Issue 1 is essentially the following syllogism:

Minor premise: ‘The technical contribution of the subject patent/computer-program’ is a sequence of instructions.

Major premise: A sequence of instructions is barred by S.3(k).

Conclusion: Therefore, ‘the technical contribution of the subject patent/computer-program’ is barred by S.3(k). In other words, the subject patent/computer-program is barred by S.3(k).

?

Equating the term ‘technical contribution of a subject patent/computer-program’ with the term ‘a sequence of instructions’, makes the negative conclusion of the syllogism inescapable.

?

Similarly, Issue 2 is in essence the following syllogism:

Minor premise: ‘The substance of the subject patent/computer-program’ is an algorithm.?

Major premise: An algorithm is barred by S.3(k).

Conclusion: Therefore, ‘the subject patent/computer-program’ is barred by S.3(k).

?

Equating the term ‘the substance of the subject patent/computer-program’ with the term ‘algorithm’, makes the negative conclusion of the syllogism inescapable.

?

Conclusion:

The above discussion is meant to show that the Blackberry judgement is fundamentally incorrect in the formulation of its issues, and that the errors are occasioned primarily by a less-than-precise formulation and usage of the relevant terms and propositions involved in the argument.

As the errors in the judgement are essentially errors of logic they become apparent even without any reference to the specific facts of the case —as seen above.

?It is submitted that if the law as laid down in Ferid Allani and Microsoft Technology Licensing (investigation of the truth of proposition P) is applied to the specific facts of Blackberry –the claims as construed within the Blackberry judgement-, the subject-patent would appear not to be barred by S.3(k). In fact the judgement itself records a finding in Paragraph 58 that the subject patent application has a technical contribution.?

By recording that the subject patent application has a technical contribution, the Blackberry judgement effectively asserts the proposition P to be true. Yet it arrives at a conclusion that is contradictory to the conclusion of the hypothetical syllogism symbolizing the ratio of Ferid Allani and Microsoft Technology Licensing.

Of two contradictory positions, if one is true the other must be false. The decision on which of these two positions, Blackberry or Ferid Allani read with Microsoft Technology Licensing, is true will fall within the jurisdiction of an appellate court. This decision again will turn on how the relevant terms and propositions are interpreted and articulated.

As the quotation often attributed to Voltaire says: if you wish to argue/converse with me, first define your terms!

?

-Kumar Sudeep

About the author: the author is an independent counsel practising at the Supreme Court of India, the High Court of Delhi, and the National Company Law Tribunal & Appellate Tribunal. He completed his undergraduate degree in Computer Science & Engineering, and worked as an R&D engineer for a few years across Delhi-NCR, Bengaluru, and Silicon Valley, California prior to setting up law practice.

[1] 2019: DHC: 6944; Ferid Allani vs. Union of India & Ors.

[2] 2023: DHC: 3342; Microsoft Technology Licensing LLC vs. The Assistant

?Controller of Patents And Designs

[3] 2024: DHC: 6571; Blackberry Limited vs. Assistant Controller of Patents And Designs