[Linux-aus] Re: Fwd: Software patents

Matthew Palmer mpalmer at hezmatt.org
Fri Dec 23 06:48:02 UTC 2005

On Thu, Dec 22, 2005 at 05:48:27PM +1100, Andrew Donnellan wrote:
> What do you all think of this?
> andrew
> On 12/20/05, Matt.Kraefft at ipaustralia.gov.au
> <Matt.Kraefft at ipaustralia.gov.au> wrote:
> >
> > Hello Andrew
> >
> > Thank you for your enquiry by e:mail.
> >
> > The precedent we follow for computer software is that it be treated like any
> > method of operation.  If the method produces a result which is artificially
> > created and is of use in a field of economic endeavour then we would say it
> > is patentable, subject of course to considerations of newness and inventive
> > step.

That's fine as far as it goes, except for a few things:

* The unique economic benefit of a software invention is so much shorter
than that of a meatspace invention, treating them to the same monopoly power
is ridiculous.

* AFAIK, most patent examiners have bugger-all software knowledge, so the
inventive criteria is often deeply misjudged.  Anyone who's spent a bit of
time in software can look through a list of software patents and will
probably go "well, duh!" to a bunch of them (if not, "hey, I was doing that
N years ago!").

* Software invention is very low resource -- it requires less resources than
even the most low-tech backyard inventor (you can get access to computers
and the Internet for free, so you really only need a brain).  Patents,
however, cost a pile.  I can have the resources to create amazing things,
but have no hope whatsoever of getting a patent.  So the patent powers go to
all of the big guys.  This wouldn't be a problem except that the only patent
defences in common use appear to be Mutually Assured Destruction.  Court
time is a no-hope.

* The prior art checks don't appear to be done with nearly enough rigour, so
the resourceless inventor (previous point) is likely to end up getting
screwed both coming and going -- they don't have a patent portfolio to
defend themselves with, and once the patent is granted, if they've already
"discovered" the patent before, they have to go to court to avoid getting
sued for patent infringement for their prior art.

* The use of patents in general (not just software patents) to essentially
destroy a market segment (ref: the rsync patents) is utter stupidity.  There
should be a "use it or lose it" policy with regards to patents.

> > For example, we would generally say source code itself is not patentable (it
> > properly belongs under copyright) because there is no demonstration of
> > economic utility in source code itself.

Uhm... WTF?  I'd say that the economic utility of a concrete expression of
an idea (source code) is far greater than an abstract expression of that
same idea (a patent).

- Matt

(And don't even mention the Army Of Cultists that pop up every time you
claim that it might be less than absolutely perfect for every purpose ever
		-- Dave Brown, ASR, on MacOS X

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