Posted on 08/08/2004 7:28:52 PM PDT by GeorgiaFreeper
The US-Australia Free Trade Agreement poses a grave threat to the entire Australian software development industry due to the legal framework on intellectual property which is required upon adoption of the pact, the Open Source Industry Association and Linux Australia have warned.
In a statement issued in Melbourne today, both organisations said the FTA would hamper Australia's ability to efficiently compete in global markets. "Much like the introduction of a flawed patenting regime for pharmaceuticals, adoption of a flawed patent regime for software is not in Australia's interests," the statement said.
Brendan Scott, a spokesman for the groups and a lawyer himself, said the effects would be felt by all developers, not merely those who worked with open source software.
He said the wording in the FTA suggested Australia's software patents law and US laws would be harmonised. "The US patent system for software has been broadly condemned as flawed by many industry observers, even by the former Patent and Trademark Office director himself," Scottt pointed out.
He said any non-trivial piece of software could contain as many as thousands of code processes, algorithms or software modules, any one of which could infringe one or many US software patents.
"Most Australian developers have probably built products which 'infringe' on US software patents. Introducing a system which makes it simpler for these patent holders to bring such legal hooks into Australia is very damaging to the local industry," Scott said.
He pointed out that Australian developers would face huge fines if they recreated software processes while being unaware of the possibility that they may been patented. "Ignorance of such patents is no excuse. In future, Australian developers may not be able to make any software without the fear of paying ransom," he warned.
Scott said a majority of local developers lacked the money and time needed to check their software code-bases against the tens of thousands of software patents which could flood the market if Australia degraded its stringent software patent laws.
"US patent law allows for the imposition of punitive damages. If Australia adopted a similar law, local developers could be sued for many times more than any actual 'damages' they may have caused the patent holder, merely as a warning for others," he said.
He said huge software houses had the resources to obtain patents. "The introduction of US-style software patenting will therefore be a one-sided affair, and definitely not in the local industry's favour," he cautioned.
Even if an Australian developer owned a patent, he or she, in most cases, would not have the money and time to pursue a case against a big company. "Most software patents are owned by huge ICT firms, which keep them to be used when necessary to do an opponent serious damage or for legal leverage in deal negotiation. They are not used to 'extend the art and science' of technology," Scott claimed.
He was of the opinion that a large number of software patents in the US had been granted for processes or algorithms which are exceptionally vague or, even worse, quite obvious to most competent software development practitioners.
"They should not have been granted in the first place, as they are not 'novel'. By degrading Australia's patent system to match the US approach we will handicap our local developers needlessly."
Scott also warned that there were an equal number of issues which would arise with the introduction of DMCA-style legislation, also mandated by the FTA. "...anything which stops academic research into security and which also stops any endeavour towards software interoperability engineering is a serious problem for R & D in this country," he said.
He was referring to the Digital Millennium Copyright Act which was signed into law in the US on October 28, 1998. The DMCA's stated purpose is to update US copyright laws for the digital age.
Both organisations said they backed the proposals made by David Vaile of the UNSW's Baker & McKenzie Cyberspace Law and Policy Centre as a means of starting to tackle the problems posed by the FTA.
Vaile's proposals:
First they take the guns. Now they want to steal US intellectual property.
OSS Ping
Its also a threat to US sovereignty because it implements international labor standards devised by the United Nations ILO.
And the dinosaurs can make money like the rest of us. They can be really good at what they do, because they developed it, and make the money on the support end.
Vaporware didn't kill the development cycle. It moved it to Open Source.
IMHO.
/john
Software patents are insane. I'm patenting stuff that should be laughed out of the room. The Australians are right about this one. The U.S. position is driven by the Disney perversions of IP law.
No, they admit that a lot of stuff they wrote using their own ingenuity and talent may suddenly become susceptible to lawsuits from US companies that have overbroad BS software patnts, just because what they wrote (yes, invented and wrote themselves) happened to be covered under a patent that shouldnt have been granted in the first place.
A very large company I used to work for had a big internal patent program, rewarding employees for any BS patent they could get (which was, of course, transferred to the company). You should have seen some of the rediculous patents that were granted.
And I mean some really obvious stuff, stuff that almost any programmer faced with a simple problem could come up with. Remember the obvious Y2K solution for dates where you put 19 in front of the year if it was above or below a certain year? Patented.
No, we want to change their laws so we can squeeze money out of them.
Our corporations are shipping our jobs overseas, so we won't be able to buy the big-ticket stuff anymore. So now they're going after the wallets of our strategic allies.
Insatiable greed....
entire Australian software development industry
You just dont get this software patents are as much a danger for the Opensource community as they are for the closed source community. Yes an OSS group is warning of this and that should be considered when judging the true meaning. But if Apple and Microsoft can violate a patent what makes you think some small software shop (open or closed source) can violate a patent developing their product.
both organisations said the FTA would hamper Australia's ability to efficiently compete in global markets.
Note they are not talking about changing a law they are talking about what a new law will do. The people involved believe "The US patent system for software has been broadly condemned as flawed by many industry observers, even by the former Patent and Trademark Office director himself," You have said on this site you agree with this. So if all of the sudden China had their own patent system and wanted us to be subject to it what would you say?
This is why I'm against software patents. I think I'll go and patent the method for posting coments to a public forum using a text box and HTML.
Whaddaya think?
Probably already been done.
Holders of software and methods patents are destroying de-facto standards and fragmenting their own markets. MP3 is patented, so Red Hat dropped MP3 support and the Icecast group moved on to Oggs. GIFs and JPGs are patented, so everyone is moving on to PNGs.
Of course the closed-source world loves it. "OSS will have to start paying royalties! Linux will no longer be 'free'!" Little do they realize that they are paying more too, as their vendors are redistributing the wealth.
Drastic reforms may be required. The lawyers won't like it, but it will be good for inventors and programmers.
Yea when a patent system has more than 40% of its patents overturned when they are used there is no problem... nothing to see here folks move along..
The truly sad thing is that it would probably be granted.
Software patents are a bad idea.
We had actually implemented it, and were using it.
Thankfully, he went away after it was pointed out that we had documented its existence prior to his application date, and so we filed for a patent, only to protect ourselves.
The whole idea of software patents is absurd. They should be eliminated. Copyright is sufficient to protect actual code.
If you're an inventor, then you deserve everything you can get from the patents you have on your innovative and unique inventions. The design of what you created is protected, and no one else can recreate it without your permission and just compensation.
The problem with software and method patents is that people are usually patenting vague ideas instead of specific designs, or are patenting things that are absolutely obvious to one schooled in the trade (something that should by definition cause an immediate rejection). One Click? We already had clicking, so what's special about only clicking once? The Y2K date fix? Obvious to any programmer who thinks about it for a few minutes.
But a lot of the fault of the current situation lies with Congress, since they take the money the USPTO makes and don't give them enough back to be able to properly review all the patent applications. The other fault is that we need patent reform to severly restrict granting of all patents to only the truly innovative and unique. I've read hundreds of recent patents, and few sounded worthy of a monopoly on the idea.
Imagine if some guy put up a patent for: Using petrolium to power a moving vehicle a hundred years ago... That is how specific some of these patents are and youre right it is absolutly silly.
I'd like to see that one in court. That was in use in the 1960s, and in fact is the basis of the Y2K "problem".
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