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.
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