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Case law in Australia

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[edit] Granting a software patent in 1991

In 1991, the Commissioner of Patents rejected a patent application on the grounds that it was mathematics. On 13 December 1991, Federal Court judge Burchett disagreed and said this patent was indeed valid.[1] (Possibly: [(1991) AIPC 90-781][2]) The patent was reportedly on "smooth lines" or "rendering curved images on computer displays".

According to Pace Legal:[3]

the Court cited the seminal decision in National Research Development Corporation v Commissioner of Patents, as representative of the leading authority in Australia (the NRDC decision). The High Court in NRDC had required that for a process to be eligible for patent protection it must be one that offers some material and useful advantage belonging to the useful arts as opposed to the fine arts. The improved curved image was found to be a commercially useful effect in computer graphics, and not merely a claim reciting a mathematical algorithm.

According to ilaw.com.au:[4]

Guidelines subsequently issued by the Patents Office specified that a patent could be granted for software if it had a “commercially useful effect”. The validity of this guideline was confirmed by the Federal Court in 1994.

[edit] Grant v Commissioner of Patents, 2006

An example of an Australian court refusing a business method patent is Grant v Commissioner of Patents [2006] FCAFC 120m July 17th 2006.[reference needed] The UK 2006 ruling on Aerotel v. Telco references this Australian ruling, saying that:

the Federal Court of Appeal refused a patent for a method of protecting assets from bankruptcy involving the setting up of a trust, a gift to the trust, and a loan back with the trustee taking a charge on the loan.

A Canadian court, in Amazon v. Commissioner for Patents, said that this rejection was not based on the Grant patent being a business method but based on such patents being "mere “schemes” or disembodied ideas". The Canadian court quotes part of the Grant decision:

[26] We do not consider that the question here is whether a business system, in the sense of a system for use in a business, is or is not patentable. Patent protection is afforded to an invention that complies with the requirements of the Act, including manner of manufacture. The fact that a method may be called a business method does not prevent it being properly the subject of letters patent; see Catuity at [125]–[126].
[...]
[47] Mr Grant’s asset protection scheme is not unpatentable because it is a “business method”. Whether the method is properly the subject of letters patent is assessed by applying the principles that have been developed for determining whether a method is a manner of manufacture, irrespective of the area of activity in which the method is to be applied. It has long been accepted that “intellectual information”, a mathematical algorithm, mere working directions and a scheme without effect are not patentable. This claim is “intellectual information”, mere working directions and a scheme. It is necessary that there be some “useful product”, some physical phenomenon or effect resulting from the working of a method for it to be properly the subject of letters patent. That is missing in this case.

[edit] Apple v. Samsung in 2012

(See also: Samsung v. Apple 2011 lawsuits worldwide overview)

This case may not have much affect on patentability, but it would be worth skimming if someone has time: Australia Judge Calls Apple-Samsung Dispute Over 3G ‘Ridiculous’

[edit] Related pages on en.swpat.org

[edit] External links

[edit] References

  1. http://progfree.org/Newsletter/programming.freedom.7.html#legal
  2. http://www.jurisdiction.com/webb0001.htm
  3. http://www.pacelegal.com.au/bilski-v-kappos-software-patents/
  4. http://www.ilaw.com.au/public/patentsarticle.html

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