Pass with caution!

Tigers in sanctuaries to get ID cards, PTI, 8th  October

A turned-away tiger complains to the Supreme Court. Ashish Kothari reports on this strange case from the Maharashtra-Madhya Pradesh border
—————————
In a first case of its kind, but one that many conservationists fear will become commonplace, a tiger from Panna National Park
(Maharashtra) was last week refused entry into the Panna National Park (Madhya Pradesh). The victim of this discrimination has filed a case in the Supreme Court of India, through its counsels in the Wildlife Protection Society of Hindustan (WPSH). She has complained that though she has been frequently going back and forth between the two parks, this time around she was told to turn back by Panna (MP)’s tigers, who asked her to show her ID card, and said that only those issued Panna (MP) IDs could henceforth be allowed in. This follows a move by the National Tiger Conversation Authority (NTCA) to issue IDs to all
tigers in India. The petitioner has named not only the Panna (MP) tigers as violating her rights, but also the NTCA for making such violation possible through its ID scheme.

Acting quickly in her support, the Vidarbha units of the Maharashtra Nazi Samiti (MNS) and Sieve Sena (SS) have filed a supplementary affidavit arguing that their state’s tigers had full right to go into neighbouring states, or indeed into neighbouring countries, continents and planets if they so wished. It is learnt that the Pashus for Universal Citizenship and Liberty (PUCL) plans to file a counter-affidavit calling the MNS and SS hypocrites, pointing out that just the other month they had announced they would not allow anyone other than Marathi-manus and Marathi-pashu to come into Maharashtra.

Meanwhile, cattle of both states, united under the Can-graze Party, issued a resolution that tigers not be allowed to move anywhere outside the national parks assigned to them. One of the demands was that tigers that stray out be identified as terrorists and booked under the National Security Act. A congregation of wild ungulates, represented by the Deer Madhyabharat Kingdom (DMK) was reported to be confused about whether to support this stand, because though they agreed that tigers were terrorists (and not only those that went outside parks), they did not want to show solidarity with domestic livestock that competed with them for grass and water. A section of co-existentialist deer were last heard arguing that livestock did not
in fact constitute an incompatible competitor, and therefore they should all join hands against their joint tormentor.

Asked his expert opinion, famous environmental lawyer Raja Panja said the aggrieved tiger had a strong case. The Constitution of India allows all its citizens the right of free movement anywhere in the country (other than into the PMO, Indian parliament, all army establishments, most VIP zones, three-fourths of the offices of district collectors (on a rotational basis), and, if barefoot, Mumbai’s Willingdon Club). So the MP tigers were wrong in stopping their Maharashtra sister.

Wildlife expert Khallas Current concurred with this view, stating that back-and-forth and various other kinds of movements were crucial to maintain the exchange of jeans, otherwise tiger fashion would stagnate. He was critical of the MNS and SS, and wanted the author to use this article to send them a message: ‘Levis and let Levis’.

An obscure NGO named Clubvriksh was heard claiming that the entire problem was a result of the NTCA initiating its ID scheme without consulting with the country’s tigers, tigerwallas (and wallis), and the local communities living in tiger-bearing areas. Meanwhile the Cat Party of India (CPI) appeared to have been thrown into disarray, as its politburo was split neatly into two on the matter. The Cat Party of Mid-India-Leopardist (CPM-L) however was faring better; it was readying an affidavit arguing that the only resolution of the tiger vs tiger conflict was a tiger-free peace zone between the two Pannas. Obviously, though it was not saying so openly, the CPM-L saw in this the great prospect of a leopard-dominated zone. The National Cat Party (NCP), once very pawar-ful but now weakened by defections to the CPI and CPM-L, was maintaining a sullen silence.
The issue could snowball into a massive headache for the central Ministry of Environment vs Forests (MoEF). A number of other species are contemplating writing to MoEF asking for similar ID schemes or conversely, expressing concern about them. The Gujarati Lions Club has already sent a flurry of emanes … sorry, emails … demanding Gujarati IDs so they would once and for all be rid of the relocation sword hanging on their heads. With such IDs, they would be mercifully refused entry into Madhya Pradesh where the central government had readied, without seeking their prior informed consent, a new home at Palpur Kuno. The Bhalu’s Jaunty Party (BJP) was likely to demand IDs, in the hope that this might help unite their warring factions when they see their essential one-ness as bears. The Elephants’ Guild of India (EGI) was however undecided, not wanting to get into a situation
where their inter-state movement was hampered. The Birds Salvation Party (BSP) was examining various relevant statues, I beg your pardon, statutes, to work out a position. The Reptilian Jaago Dal (RJD) said they did not want IDs as it would make it tough to hide in the fodder. And so on.

Rumour has it that the Prime Minister’s Office was going to ask Misinfosis founder NRN Murky to devise a unique barcode ID for each animal, which, however, did not contain its residential details. This could reduce discrimination such as what the Maharashtra tiger encountered. However, this author could not confirm this with Mr Murky, as none of the telephone directory services seemed to have his identity. We could only get a quote from rival Shutyam’s B Ramalingu Fraudju, who from his prison-cell said, somewhat unkindly, that Mr Murky would only use the opportunity to increase his sher-holders.

The tiger case is not likely to be resolved by the Supreme Court any time soon, especially since the matter had been referred to the Centrally Empawed Committee. Aware of this, the petitioner is believed to have simultaneously approached one of Nagpur’s expert forgers, to make her a Panna (MP) ID. (Indeed there is now a thriving blackmarket in tiger IDs, but that’s the subject of another investigative story, watch this space). Armed with two IDs, and most of her teeth and claws (missing only the ones that she lost in fighting the brute fellow who had first stopped her from crossing over), she hopes that she will once again be able to roam freely.

Ashish Kothari is with the NGO Clubvriksh, and hopes this article will pull it out of obscurity.
Infochange News & Features, October 2009
–

Ashish Kothari
Kalpavriksh
Apt 5 Shree Datta Krupa
908 Deccan Gymkhana
Pune 411004
India
Tel/fax: 91-20-25654239
Tel: 91-20-25675450
Email: ashishkothari@vsnl.com

Venkatesh Hariharan in his blog post wrote:

In their book, “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,” Boston University professors, James Bessen & Michael J. Meurer, show that Murphy’s Law (“If anything can go wrong, it will”) has been working overtime in the area of software. The authors dedicate an entire chapter to software and business method patents, which are particularly problematic because they account for almost 38 percent of all patent litigation.

The authors find that in the United States, software patents are twice as likely to be litigated as other patents while business method patents (which act as a proxy for software patents) are seven times as likely to be litigated. The authors say, “Our reading of the case law
convinces us that patent law tolerates too many software claims untethered to any real invention or structure; in such a world clear boundaries are unattainable.” The authors point out that patent on abstract ideas are often subject to multiple interpretations and are therefore more ambiguous. An example of this ambiguity is the E-Data patent on “point of sale location.” In the IT industry, this term is jargon for the cash register or location where the customer pays the cashier. When the US Federal Circuit interpreted this claim, they decided that it referred to any location where an e-commerce transaction might take place. Thus, a patent filed 17 years ago when e-commerce did not exist, ended up causing several lawsuits.

The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another’s patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. Thus it really is not possible to eliminate the risk of a patent infringement lawsuit.

It is well known that the U.S. has the most permissive patent system in the world. However, even in the US, there are signs that the pendulum may be swinging the other way. In the recent Bilski case, which dealt with a method of hedging risks in commodities, the US courts ruled that abstract ideas which are not tethered to a device cannot be patented. The decision reversed the 1998 State Street decision that opened the floodgates for software patents. In the European union, a move to patent, “computer implemented inventions” was thrown out in 2005.

In India, section 3(k) of the Indian Patent Act says that, “A mathematical or business method or a computer programme per se or algorithms are not patentable.” In the discussions around India’s Draft Patent Manual, the interpretation of the term, “computer programme per se” has been the most contentious one. Given the lessons of history and considering the amount of litigation that software patents have created in the US, India must avoid going down the same path.

A patent is a state-granted monopoly on an invention, in return for disclosure of the idea. The original intent of the patent system was to encourage disclosure by the inventor in exchange for exclusive rights for a limited period of time to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. The regime of software patents began its major expansion in the 1980s in the US. Since then, software developers have been consistently arguing that that software is better protected through copyrights rather than patents.

Under copyright law, if software developers write code that is similar to that of another, they can defend themselves on the grounds of independent invention because copyright protects the expression of an idea. However, the same defense is not possible under a software patent regime because a patent is a monopoly on the idea itself. Thus, even if software developers independently create a program, they may be liable for infringement of one of the more than 200,000 software patents in existence in the U.S. Even end-users who use software for routine, everyday activities may be liable for infringement. For example, McDonalds and 400 other entities were served notices for violating DataCard’s patent on “Method for processing debit purchase transactions using a counter-top terminal system.” In another case, a company (ironically) called Beneficial Innovations, sued the New York Times, You Tube and many other media organizations for allegedly violating its patent on “Method and system for playing games on a network.” Therefore the problem of software patents is not one that is confined to the software development industry alone and ends up increasing the cost of software for society as a whole.

The problem is compounded by the fact that litigation is an expensive process. Dan Ravicher of the Public Patent Foundation points out that for a patent holder to send a cease-and-desist letter, all it takes is a post card. However, that inexpensive post card sets off an expensive chain of events for the defendant who will typically pay a lawyer USD40,000 to get a legal opinion, around USD 2-4 million in attorney’s fees if the case goes to court and many millions more if the defendant loses the case in court and is required to pay damages.

The argument in favor of software patents is that patents promote innovation. The social contract between an inventor and society was that the inventor disclosed details of the invention in return for the patent, and this disclosure would lead to future inventions. However, the history of the software industry shows that innovation flourished long before software patents came into force during the 1980s. Some of the fundamental inventions of the computer age—the Internet, compilers, spreadsheets etc–were created despite the lack of patent protection. It is therefore clear that patent protection is not necessary for innovation in the software industry.

As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The act of granting a 20 year exclusive right to profit from an idea to a private entity needs to be weighed against the cost that it imposes on society. Since software and business method patents prevent independent invention, do not function well as a system of property and lead to increased litigation, India must comprehensively reject it.
Note: An edited version of this article recently appeared in Economic Times.