Devs petition to abolish software patents

Open source luminaries Andrew Tridgell and Jonathan Oxer were among 402 signatories of a grassroots petition urging the Government to abolish software patents in Australia.

Inked on 19 July, the open letter to Innovation Minister Kim Carr brought together free software enthusiasts who claimed "software patents are dangerous and costly to business and the community".

According to the letter's author, Ben Sturmfels of Software Freedom Labs, patents were not only unnecessary, but also "actively discouraged" innovation in the software industry.

"For small to medium-sized developers, it is neither viable to search for and read software patents, nor to defend against patent lawsuits," he wrote. "The need to do so discourages innovation."

Sturmfels aimed to collect 500 signatures - a target he described as impressive, but achievable - before delivering the letter to Minister Carr this month.

So far, the letter has been signed by Samba developer Tridgell, Debian developer Oxer, Melbourne-based software engineer Alex Fraser, Victorian web developer Kathy Reid, and Australian Privacy Foundation chair Roger Clarke.

"[Having software patents abolished] won't be easy, but I think it's a very important thing to do," Sturmfels told iTnews.

"Software people like myself tend not to tell their political representatives what they think. Given the support we've had though, it's clear many from all over Australia care deeply about the issue."

Patent law, today

The petition came as the Federal Advisory Council on Intellectual Property (ACIP) prepared to report on its 2008 Review of Patentable Subject Matter. An ACIP spokesman said the report would be released in early 2011.

In its review documents, the ACIP questioned if the manner of manufacture test in the Australian Patents Act 1990 was "ambiguous and obscure", noting that it should be addressed within the context of modern research and business.

But Microsoft Australia's director of intellectual property, Vanessa Hutley, denied that there was a need for change.

"Microsoft supports the current position in Australia which looks at each patent application based on its merits," Hutley told iTnews.

"Microsoft believes that any move to abolish software patents - however defined - would introduce additional complexity and confusion and be detrimental to all those who seek to protect their inventions through the patent procedure."

A spokesman for IBM said the company had "embraced a balanced intellectual property strategy", directing iTnews to a November 2009 blog post by Mark Chadurjian, Senior Counsel, IBM Software Group Intellectual Property Law.

In the post, Chadurjian said "overly broad software-based patents" favoured private benefit to the detriment of associated public benefit. However, entirely abolishing software patents "would be a mistake", he wrote.

"At one end of the strategy, we are the leaders in innovation and invention ... At the other, we are leaders in the sharing of intellectual property and are committed to open technology standards, to stimulate and support collaborative innovation," IBM stated today.

Meanwhile, across the Tasman, the New Zealand Government was considering amendments to the Patents Act 1953 that would include computer programs as "inventions that may not be patented".

Further afield, United States patents were granted to "whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title."

Signatories

Clarke, a Canberra-based eBusiness consultant and online law and policy expert, said IP and patents fit poorly to the field of software development, where multiple problems were addressed by many people at the same time.

He demanded reform in the face of the US-Australia Free Trade Agreement, arguing that "slackness - or possibly national self-interest - has resulted in the US Patents Office lowering the threshold of inventiveness so low that pretty much anything gets through.

"Patent law represents a major barrier to innovation," he said. "Given that reform has proven impossible, we'd all be far better off if software was entirely removed from the patents arena."

Tridgell approached the software patent argument from an ethical standpoint, noting that the current system did not account for independent invention.

"Patent laws are unusual in that being not guilty of the underlying ethical wrong is not a defence," he said.

"The fundamental ethical wrong that someone accuses you of when they say you infringe their patent is 'you stole my work'. If you never knew about the patent and came up with the idea independently - which is the norm - then that basic ethical claim is incorrect."

Oxer said it had been "very frustrating to see so much potential innovation curbed by software patents" in his experience as the owner of a software development company and as an open source software contributor.

"Rather than fulfilling their intention of encouraging innovation, when patents are applied to intangible concepts such as software, processes, and formulae they have the opposite effect by preventing the development of new and better systems based on existing well-understood techniques," he said.