newsThe Pirate Party Australia has made a strongly worded submission to a review being held by the Federal Government’s Advisory Council on Intellectual Property (ACIP) challenging the inclusion of software in Australia’s current patent system.

Criticising the Australian Government, David Campbell, President-elect of Pirate Party Australia, said in a statement that the current patent system sabotaged local innovation and creation of jobs. “There will come a time when innovation is no longer possible due to innovation itself being patented. Patents are intended to recompense inventors for their efforts in developing products and methods that will benefit society. This is clearly not being achieved when patents for everything and anything are being granted,” Campbell said.

The submission (available online in PDF format) highlights two practices which the Pirate Party is troubled by:

• ‘Patent trolling’: Companies which use opportunistic and aggressive measures without any intent to develop or market the patented invention. ‘Patent trolls’ build up huge portfolios of patents that are not used over the full duration of the patent period.
• ‘Evergreening’: Subsidiary components of the patent are further protected by individual patents.

The submission argues that software algorithms are mathematics and therefore cannot be patented. According to Intellectual Property Australia’s regulations: “You cannot patent…mathematical models, plans, schemes or other purely mental processes.” Unutilised ideas have no value; the submission considers that software patents put good ideas out of the reach of intelligent people.

In the fast-changing IT industry, innovators often use combinations of different ideas from previously existing software platforms to develop outcomes for better efficiency, speed and simplicity. According to the Pirate Party Australia submission, software developers waste time and resources while formulating ineffective methods of achieving the same ends, to avoid being sued for violating patents with every new piece of code.

The party believed that the abuse of software patents involves:

• Extortion by suing successful companies for violation of a poorly defined patent.
• Amassing patent portfolios to use in negotiations between technology companies over mutual patent violations.

The resultant expense of defending against frivolous lawsuits discourages innovation by small businesses and startup companies, according to the Pirate Party. To escape the frustration and legalities of software patents, entrepreneurs prefer to base their businesses elsewhere, leading to a brain drain. The Pirate Party Australia submission envisages that patent reform will invite more foreign investment from inventors and companies looking for relief from the widespread patent wars in the IT sector.

Currently, patent holders are not obliged to prototype, license or market their patents. The Pirate Party Australia submission suggests a mechanism for developing patents by requiring patent holders to Prototype their patents within two years of the approved application and market the patent within six years of the approved application.

Further suggestions to curb ‘evergreening’ are also included in the submission. It also opposes patents on living organisms and genetic material for ethical reasons. Significant issues with the practices for pharmaceutical patents are also highlighted in the submission.

Mozart Palmer, spokesperson for Pirate Party Australia, asserted that large corporations do not encourage competition and therefore push for strict enforcement of patents. “There is no incentive for improvement unless a similar product can be made that is superior and cheaper. Competition is the basis of the free market economy. Patents not only hurt business, but they hurt the consumer by disallowing access to a range of options,” he said.

opinion/analysis
I’m sure that most legal commentators on the global patent system would consider the Pirate Party’s views on the matter to be fairly extreme. Abolish software patents? Set limits on how patents can be used? Legal lunacy! Companies like Apple, Google, Microsoft, IBM and so on, which have built up billions of dollars worth of patents over the years, would instantly sue, or so it would seem.

However, the party’s views are becoming increasingly mainstream within the global technology industry. It is a simple fact that innovation in technology comes primarily from building upon existing platforms — not wholly developing new ones. And the pace of innovation is increasingly too fast for technology developers to spend too much time thinking about patents.

Many technology sector workers, for example, find the current global legal action between Apple and Samsung and other tablet manufacturers for breach of iPad-related patents to be fairly ridiculous. When Apple has almost a monopoly position on the market, so the argument goes, rival companies should be incentivised to develop alternatives and create competition — rather than severely restricted from doing so through patents.

The other side of the coin, of course, is that companies must be able to legitimately commercialise their development efforts. But many would argue the current patent system is weighted too far in this direction.

Opinion/analysis contributed by Renai LeMay

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1. G Thompson
   Posted 07/11/2011 at 2:29 pm | Permalink | Reply

   The other argument against software patents is that Software programming by it’s very nature is simply a list of procedures that initiate already existing instructions inbuilt into the chipsets (below even the OS) and are therefore nothing more than a list of ingredients manipulated in a certain way to create an outcome.

   We already have a real world example of this that has been around for thousands of years that cannot be copyrighted, patented nor trademarked. They are called RECIPES.

   If you cannot patent recipes because of the above (and obviousness), you should not be able to patent in any way shape or form software procedures.

2. SMEmatt
   Posted 07/11/2011 at 2:51 pm | Permalink | Reply

   The issues are

   poorly defined patent.
   patent holders are not obliged to prototype, license or market their patents

   How does not producing anything help innovation.

3. Peter Piper
   Posted 07/11/2011 at 4:23 pm | Permalink | Reply

   remember when cadbury tried to lay their claim over the colour purple???

   • Nich
     Posted 08/11/2011 at 2:23 pm | Permalink | Reply

     Trademarks != patents.

4. R
   Posted 07/11/2011 at 7:51 pm | Permalink | Reply

   The key problem with software patents is that it’s not just the implementation that gets patented. You can patent a certain design of motor, but not the concept of a motor itself. However, with software patents either the algorithm itself is patented (and algorithms are really just pure math), or the objectives of the algorithm are patented.
   Consider Amazon’s 1-click patent. That prevents anyone from implementing a 1-click system, regardless of how they implement it.

   Nothing should be protected by both copyright and patents. Those two have different goals and are separate for a reason. If anything is covered by both, then that should make it obvious that the law is being distorted.

   Also, I would hardly call it lunacy – it’s worth noting that only Australia, the US and Japan have software patents. The EU and UK have rejected them. This highlights the tensions placed on the Australian government – even though our laws are derived from that of Britain, our IP laws are heavily influenced by the US via trade agreements.

   For those interested, more information can be found here: http://en.swpat.org

5. Northern Blue
   Posted 08/11/2011 at 8:58 am | Permalink | Reply

   I recently did some patent surfing for the core ideas underscoring our software. We’ve been operating since the early 90s. But, sure enough, there was a patent filed in 2006 for the EXACT idea we have been using and promoting for years. Did we get a patent? Nope – there were others doing similar things even back in the early 90s. So copyright is applicable only.

   I put this to the readers – can you name one genuinely patentable piece of software in this day and age? bear in mind that NO-ONE could have done it before – over 30+ years of computer software development on system that have been (and have not been) web linked/pre-web, PC/mainframe/midrange whatever. I’m not saying they don’t exist (I can think of several potential advanced algorithms), but in reality most software is just a variation of an existing theme.

   As ‘R’ pointed out above, for example, adding a button to a form and pulling the customer billing data from a database table is hardly a genuinely innovative idea – how is that patent rewarding innovation rather than rewarding the person/company who just realised it wasn’t yet patented and so patented it as a revenue raiser. Now it takes someone with lots of $$ to challenge a very powerful company to overturn the patent – not likely so the patent becomes enshrined through bullying.