[LINK] ITNews: 'Devs petition to abolish software patents'

[Roger Clarke]

Devs petition to abolish software patents
IT News
By Liz Tay
Aug 3, 2010 6:39 AM
http://www.itnews.com.au/News/221688,devs-petition-to-abolish-software-patents.aspx

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 
Subject Matter.

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."

Signatories

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 
through.

"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 
independent invention.

"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 
contributor.

"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