IP Australia debates software patents

Parliamentary petition yet to effect change.

A Melbourne software developer who led a 2010 parliamentary petition to abolish software patents failed to win over developers and lawyers at an IP Australia debate this week.

The debate was convened by Australia’s intellectual property authority, IP Australia, and involved developer Ben Sturmfels and Uniloc inventor Ric Richardson.

According to Sturmfels, the Australian patent system had been established to promote innovation, but software patents were “harmful to industry and society”.

“We’re asking the Government to exclude software from patentable subject matter,” he said, referring to his petition that attracted 1083 signatures.

“The patent system isn’t about individual wealth for inventors. It’s actually for the benefit of society.”

Although IP Australia’s patent database records patents dating back to 1904, software has only been patentable in the country since 1991.

IP Australia deputy commissioner Phil Spann said “computing-related [patent] applications” had increased “moderately” since 2003, in line with an increase in patent applications in general.

He said computing-related applications accounted for six percent of Australian patent applications, compared to four percent in Germany, six percent in China and Japan, and ten percent in the US.

Sturmfels said patents may be useful for certain industries, but harmed the fast-paced software industry, where “you get people inventing the same thing … all at the same time”.

“By saying someone has more right to an idea than someone else, just because they’ve filed a patent before anyone else has, that’s just silly,” he said.

“People don’t use the patent system in the way that it’s intended. They don’t read patents to stay up to date with state-of-the-art things.

“So they can’t search for and avoid patents that already exist in the system. That’s the real trouble.”

Sturmfels asserted that “mega-corporations” had the most to gain, as they tended to stockpile a “truckload of patents” to use against opponents in court.

Inventor Ric Richardson disagreed, highlighting Uniloc’s multi-million dollar settlement with Microsoft in March.

“Everything is digital these days,” he said. “If you say there’s no room for a software patent then it really is open slather for anybody who can just go faster than the next person.

“Someone could just come along and say, ‘Ric, you’ve got a great idea, how does it work? Oh, we might send you a couple of bucks in a few years. Thanks very much for your time.’

“You’d have no control over that, and no one who’s a fair thinker would say that’s a fair way to treat someone who’s come up with a good idea.”

Richardson noted that although he had agreed to be the “poster boy for the US [Patent and Trademark Office] and IP Australia”, he was sometimes restricted by patents too.

He said Apple patents were a major roadblock in his attempts to develop hot-swappable backup batteries for the vendor’s devices.

“Even though [Apple doesn’t] participate in secondary power supplies, they ferociously stop anyone else from doing that,” he said.

“There should be something like the ability to know that you pay [a percentage] of your sale price as a royalty to the patent owner for your application, as long as it doesn’t compete with what you’re actually doing.

“Something fair like that.”

Patenting open source

Sturmfels did not directly address questions from the audience about how software developers might claim intellectual property rights without a patent system.

The Federal Government issued a written response to Sturmfels' petition in August 2010. Sturmfels hoped that moves to abolish software patents in New Zealand would prompt further Australian action.

He argued that using the word “protection” to describe patents was an “emotive word used by people who think the patent system is a good thing”.

“Patents aren’t an effective way of encouraging innovation,” he told one developer.

“The point is the patent system isn’t so that you survive. It’s so that society benefits from these things. And on balance, I’m saying society isn’t winning out.

“People get less features in their software because of patents. They get lock-in … and they get higher prices because of the monopoly.”

Sturmfel’s anti-patent petition was supported by several members of the open source community, including Andrew Tridgell, Jonathan Oxer and software freedom activist Richard Stallman.

Richardson suggested that the patent system could be used by the open source community, with patent-holders free to license their intellectual property according to their beliefs.

Patent attorney Michael Bates of 1Place agreed that developers could use the patent system to ensure their inventions remained open source.

“If a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it just as open source software is licensed,” Bates noted.

“This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain.

“Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence.

“Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large.”

Open source software vendors including Sun Microsystem, Novell and Red Hat have made patents available for use by open source developers under various licensing arrangements.

Red Hat states in its patent policy that “software patents generally impede innovation in software development and … are inconsistent with open source / free software”.

“At the same time, we are forced to live in the world as it is, and the world currently permits software patents,” the company states.

“A relatively small number of very large companies have amassed large numbers of software patents. One defence … is to develop a corresponding portfolio of software patents for defensive purposes.”

IP Australia lists some 84 patents that refer to open source software.