[LINK] ITNews: 'Devs petition to abolish software patents'
Roger.Clarke at xamax.com.au
Tue Aug 3 11:31:17 EST 2010
Devs petition to abolish software patents
By Liz Tay
Aug 3, 2010 6:39 AM
Group pens open letter to Innovation Minister.
Open source luminaries Andrew Tridgell and Jonathan Oxer were among
402 signatories of a grassroots petition urging the Government to
abolish software patents in Australia.
Inked on 19 July, the open letter to Innovation Minister Kim Carr
brought together free software enthusiasts who claimed "software
patents are dangerous and costly to business and the community".
[Inked? Not even *this* old-fashioned person actually *printed* it!]
According to the letter's author, Ben Sturmfels of Software Freedom
Labs, patents were not only unnecessary, but also "actively
discouraged" innovation in the software industry.
"For small to medium-sized developers, it is neither viable to search
for and read software patents, nor to defend against patent
lawsuits," he wrote. "The need to do so discourages innovation."
Sturmfels aimed to collect 500 signatures - a target he described as
impressive, but achievable - before delivering the letter to Minister
Carr this month.
So far, the letter has been signed by Samba developer Tridgell,
Debian developer Oxer, Melbourne-based software engineer Alex Fraser,
Victorian web developer Kathy Reid, and Australian Privacy Foundation
chair Roger Clarke. [Why do I get that tag in this context I wonder.]
"[Having software patents abolished] won't be easy, but I think it's
a very important thing to do," Sturmfels told iTnews.
"Software people like myself tend not to tell their political
representatives what they think. Given the support we've had though,
it's clear many from all over Australia care deeply about the issue."
Patent law, today
The petition came as the Federal Advisory Council on Intellectual
Property (ACIP) prepared to report on its 2008 Review of Patentable
In its review documents, the ACIP questioned if the manner of
manufacture test in the Australian Patents Act 1990 was "ambiguous
and obscure", noting that it should be addressed within the context
of modern research and business.
But Microsoft Australia's director of intellectual property, Vanessa
Hutley, denied that there was a need for change.
"Microsoft supports the current position in Australia which looks at
each patent application based on its merits," Hutley told iTnews.
"Microsoft believes that any move to abolish software patents -
however defined - would introduce additional complexity and confusion
and be detrimental to all those who seek to protect their
inventions through the patent procedure."
A spokesman for IBM said the company had "embraced a balanced
intellectual property strategy", directing iTnews to a November 2009
blog post by Mark Chadurjian, Senior Counsel, IBM Software Group
Intellectual Property Law.
In the post, Chadurjian said "overly broad software-based patents"
favoured private benefit to the detriment of associated public
benefit. However, entirely abolishing software patents "would be a
mistake", he wrote.
"At one end of the strategy, we are the leaders in innovation and
invention ... At the other, we are leaders in the sharing of
intellectual property and are committed to open technology standards,
to stimulate and support collaborative innovation," IBM stated today.
Meanwhile, across the Tasman, the New Zealand Government was
considering amendments to the Patents Act 1953 that would include
computer programs as "inventions that may not be patented".
Further afield, United States patents were granted to "whoever
invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefore, subject to the
conditions and requirements of this title."
Clarke, a Canberra-based eBusiness consultant and online law and
policy expert, said IP and patents fit poorly to the field of
software development, where multiple problems were addressed by many
people at the same time.
He demanded reform in the face of the US-Australia Free Trade
Agreement, arguing that "slackness - or possibly national
self-interest - has resulted in the US Patents Office lowering the
threshold of inventiveness so low that pretty much anything gets
"Patent law represents a major barrier to innovation," he said.
"Given that reform has proven impossible, we'd all be far better off
if software was entirely removed from the patents arena."
Tridgell approached the software patent argument from an ethical
standpoint, noting that the current system did not account for
"Patent laws are unusual in that being not guilty of the underlying
ethical wrong is not a defence," he said.
"The fundamental ethical wrong that someone accuses you of when they
say you infringe their patent is 'you stole my work'. If you never
knew about the patent and came up with the idea independently - which
is the norm - then that basic ethical claim is incorrect."
Oxer said it had been "very frustrating to see so much potential
innovation curbed by software patents" in his experience as the owner
of a software development company and as an open source software
"Rather than fulfilling their intention of encouraging innovation,
when patents are applied to intangible concepts such as software,
processes, and formulae they have the opposite effect by preventing
the development of new and better systems based on existing
well-understood techniques," he said.
Roger Clarke http://www.rogerclarke.com/
Xamax Consultancy Pty Ltd 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au http://www.xamax.com.au/
Visiting Professor in the Cyberspace Law & Policy Centre Uni of NSW
Visiting Professor in Computer Science Australian National University
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