[Linux-aus] Re: Fwd: Software patents

Andrew Donnellan ajdlinux at gmail.com
Fri Dec 23 07:07:02 UTC 2005

On 12/23/05, Matthew Palmer <mpalmer at hezmatt.org> wrote:
> 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.

When newer ideas and algorithms replace them, the old ones are still
patented and we still can't use them for the next 15 years. Just look
at PNG and GIF.

Also a lot of software patents don't have ANY economic benefit - what
about when M$ does crazy things like patent algorithms to determine
exciting parts of baseball games?

> * 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!").

If we're going to have software patents, we would at least need to
employ experienced programmers as examiners.

> * 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.

Inventing a new software idea
* relatively smart person
* a cheap $500 computer
* internet access (optional but recommended).

That's it.

> * 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.

A lot of companies R&D divisions patent a lot of things for the sake
of patenting them, I think.

> > > 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).

Yes, except that source code is kept secret (proprietary source, that
is), where as patents require full disclosure.


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