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New legislation about patentable subject matter is to expected in Australia in "late 2010".[1] A recent consultation suggests the legislation proposed will be very bad.

Contents

The coming 2010 legislation

In 2004, the government body Australian Law Reform Commission recommended a review of the current law which relys on the poorly defined "manner of manufacture" test. Another government body, Advisory Council on Intellectual Property (ACIP) held a public consultation on patentable subject matter) from September to November 2009. (analysis: Australian consultation responses 2009) According to the working group secretary Geoff Sadlier, the working group meet again in early December 2010 before expecting the final report to be delivered in February 2011.

  • Bad news: the patent office already grants them and the courts already uphold them (see below)
  • Good news: the government-commissioned Venturous Australia report suggested software patents are bad
  • Bad news: the only software developer that participated in ACIP's consultation was Microsoft

Consultations have been held on various aspects of patent law in 2008 and 2009,[2] so the legislative proposal is likely to be broad.

Petition to House of Representatives

Signatures are now being collected on a paper petition. The petition will be available for signing at software events and also available as PDF to be returned by post (Parliamentary requirements dictate that petition must be on paper with original signatures). Download a copy from http://endsoftpatents.org/australia.

Letter to the Australian government to abolish software patents

During July and August 2010, electronic signatures were collected on a letter to Senator Kim Carr calling for software patents to be abolished in Australia.

On 11 August 2010, the letter with 1000 signatures was sent to Senator Kim Carr (Minister for Innovation, Industry, Science and Research), Richard Marles (Parliamentary Secretary for Innovation and Industry) and Geoff Sadlier (Secretary for Advisory Council on Intellectual Property ACIP).

A response was received later that month from Philip Noonan (Director General, IP Australia) on behalf of Senator Carr and the ACIP. The response is mostly factual, though acknowledges the lack of awareness about the public consultation and suggests that further consultation may be possible.

The next steps will include a formal petition to the Australian House of Representatives (required to be on paper with original signatures).

Types of patent in Australia

In Australia, there are two types of patent. There are normal patents, and "innovation patents". The latter are minimally examined (which lead to someone getting a patent on the wheel[3][4]), but these are not the normal, main category of patents.

Legislation

is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies;

The Statute of Monopolies was passed by the English parliament in the 1620s:

Section 6 of this statute mentions manner of manufacture, but it doesn't give much information on what this means:

6 (a ). Provided also, that any declaration before mentioned shall not extend to any letters patents (b ) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c ) to the true and first inventor (d ) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e ), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f ): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g ).

"Free Trade Agreement" with the USA

Australia has a "Free Trade Agreement" (FTA) with the USA, which includes requirements about what is patentable subject matter, but this does not pose any legal problem. The words used are identical to the TRIPS agreement (Art 27), which Australia has also signed, so nothing is changed by this agreement. The relevant part of the FTA is Art 17.9, paragraph 1:[5]

[...] shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application

Like with the TRIPS agreement, there is no definition of "technology", so the Australian government can define that writing software, like writing a book, is not a "field of technology". This issue was looked at in detail during the years of lobbying on the EU software patents directive and didn't prevent the European Parliament from voting amendments which completely excluded software from patentability.

How the patent office interprets the legislation

The patent office of Australia is IP Australia, and they grant software patents.

The Australian patent office says that the "means of manufacture" definition allows the granting of patents for schemes or plans if "there is a means for putting the scheme or plan into effect."[6] Two examples are given[7]:

  • A method of analysing business performance by operating a computer system to set specified parameters and thresholds in accordance with preselected criteria and to compare business performance against the parameters and thresholds.
  • A method of raising funds by seeking sponsors to donate products, and programming a computerised random number generator to operate in a specified way to conduct a raffle of those products.

Another document from the patent office says:

A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must [...] be a manner of manufacture. A patent may be granted only for a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes;

And their page on criteria for eligibility explains:

Your invention must ... be a 'manner of manufacture'. It includes any device, substance, method or process, but it excludes artistic creations, mathematical methods, plans, schemes or other purely mental processes;

See also: Representative of IPAustralia describing the situation with software patents

According to the Australian legal website iLaw, software ideas are patentable if they have a "commercially useful effect".[8]

Case law

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.[9] (Possibly: [(1991) AIPC 90-781][10]) The patent was reportedly on "smooth lines" or "rendering curved images on computer displays"

According to Pace Legal:[11]

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:[12]

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.

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.

Related pages on en.swpat.org

Australian campaign outline

An Australian campaign is being organised by Ben Sturmfels with assistance from members of the Melbourne Free Software Interest Group. Please contact Ben or post to the aust-public-discuss mailing list if you would like to offer assistance.

We have agreed to not yet target the non-technical public in our campaign, ie. no TV ads for now.

  • DONE turn http://endsoftpatents.org/australia into our public webpage
  • TODO write good-quality content suitable for non-technical visitors and politicians
  • TODO write a detailed submission to the government against software patents
  • TODO produce a flyer for general purpose use
  • TODO collect examples of how software patents negatively impact general public, eg. commercial use of H264

Petition the House of Representatives

Planning to request that petition signatures be returned by 30 October. Does seem like a long time, but Stallman's Australian tour goes until 21 October.

  • DONE deliver letter to Senator Carr with 1000 software industry signatures
  • DONE close acceptance of signatures on letter to Senator Carr
  • DONE publish response to letter to Senator Carr
  • DONE write a paper petition in format acceptable to patents committee
  • TODO collect signatures at upcoming events, eg. Richard Stallman speeches, Software Freedom Days, OSDC, workplaces
  • DONE produce a poster/handout to go with petition

Collect a list of Ambassadors against software patents

  • TODO collect a list of Ambassadors willing to publicly oppose software patents

Build relationships with organisations and individuals

  • TODO contact Peter Harrison (NZ patents campaign) for advice
  • TODO find out the NZ current status
  • DONE contact EFA - Collin Jacobs suggests that EFA would be willing to support a suitably written fact sheet/paper representing our position
  • TODO write a fact sheet/paper describing our position
  • TODO contact Liberty Victoria

Talk to politicians

  • TODO discuss issue with Greens
  • TODO discuss the impact of the Australia-US Free Trade Agreement
  • TODO write a sample letter for local representatives
  • TODO write letters to and meet with our local representatives
  • TODO invite local representatives to workplaces to show them how creative and innovative they are without patents

Australian software developed without software patents

This section catalogues innovative Australian software to demonstrate that software patents are not required to produce innovative software. Proprietary software examples are particularly valuable.

Please add a first release date to the title.

Trumpet Winsock (1993)

Internet connection tool written by Peter Tattam.

13/9/2010: Ben Sturmfels contacted Peter Tattam who confirmed Trumpet Winsock was developed without software patents.

HotDog (1995)

Web page editor

Rsync (1996)

Data syncronisation tool

netfilter/iptables (1998)

Firewall tools

Ghostview for Windows

A PostScript viewer/frontend for ghostscript, developed by Ghostgum Software First release: Version 0.7 beta 1993-05-10

MHSnet/ACSnet (before 1984)

http://en.wikipedia.org/wiki/MHSnet

Software by Carsten Haitzler?

http://en.wikipedia.org/wiki/Carsten_Haitzler

Samba (1992)

http://en.wikipedia.org/wiki/Samba_%28software%29

Gumnut

Uses distributed protocols (namely gnutella I think) to distribute consensus decision making and reaching processes.

http://gumnut.sourceforge.net/

mSQL (1994)

Bambi's mSQL (forerunner of MySQL etc) http://en.wikipedia.org/wiki/MSQL

ANUGA

http://www.ask-oss.mq.edu.au/index.php?option=com_content&task=view&id=54&Itemid=69

BNU

By Unique Computing P/L (David Nugent), from Melbourne (1980s)

http://en.wikipedia.org/wiki/BNU_%28software%29

SSLeay

Eric A. Young and Tim J. Hudson's SSLeay (the basis for the globally fundamental OpenSSL), developed in Australia specifically because the RSA patents did not cover use in Australia.

The relevant RSA patent has now expired allowing the software to be widely used.

VET Anti-virus (1989)

Written by Roger Riordan, first released 1989.

8/9/2010: Ben Sturmfels spoke to Roger who confirmed that VET was developed without software patents.

NAserver

Application that ran on PCs and Macs that let you configure Pathworks networks on DEC Vax machines ... was promoted around the world then killed by DEC for their own purposes. It was a very early graphical application.

Starfire II

An ERP system that ran on a Vax and had lots of users .. biggest was Aust Post who ultimately replaced it with SAP a decade later.

CCAS

Call charge analysis system ... which ran for years and years and captured all the telephone call information in about 100 telephone exchanges all round Australia and in Singapore.

TDMS emulator

TDMS was a screen building set of libraries? which ran on Vaxes. When DEC moved to risc it ceased to function. people at Praxa reversed engineered it sohehow - probably assisted by DEC and created an emulator for it to run on risc. it was used in some large corporates all round the world .. maybe still is.

<can't remember name>

A little later some guys created an application <cant remember name> that displayed movies, allowed food choices, let you gamble and play games and ran inside a browser. Bill Gates used it as the main demonstration application at the official announcement of IE4 ... I think they even built a mock-up plane to demo it in. It was subsequently used by a number of airlines. probably was one of the really early in-plane entertainment systems. It was probably 1996 ish as the release was in 97 per wikipedia.

Moodle

http://en.wikipedia.org/wiki/Moodle

GBST Shares (1993)

Shares trading system which currently settles approximately 50% of the stock (value-wise) traded on the ASX.

http://www.mysharetrading.com/gbst-holdings-gbt.htm http://www.gbst.com/products/broker-services/shares-australia.aspx

In the media

External links

Possibly related links for review

References

  1. "Review of Patentable Subject Matter". http://www.acip.gov.au/reviews.html#subject. "ACIP expects to provide a final report to the Australian Government in late 2010." 
  2. http://www.ipaustralia.gov.au/resources/news_new_archived_2009.shtml#41
  3. http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html
  4. http://edition.cnn.com/2001/WORLD/asiapcf/auspac/07/02/australia.wheel/
  5. http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html
  6. http://www.med.govt.nz/templates/MultipageDocumentPage____1461.aspx#P444_107121
  7. http://www.med.govt.nz/templates/MultipageDocumentPage____1461.aspx#P444_107121
  8. http://www.ilaw.com.au/public/patentsarticle.html
  9. http://progfree.org/Newsletter/programming.freedom.7.html#legal
  10. http://www.jurisdiction.com/webb0001.htm
  11. http://www.pacelegal.com.au/bilski-v-kappos-software-patents/
  12. http://www.ilaw.com.au/public/patentsarticle.html


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