10.16.10
Canada Needs to Fight Back Against Software Patents and Business Method Patents
Summary: A ruling in Canada jeopardises the county’s status when it comes to patent law; the FSFE publishes its rebuttal to the BSA’s software patents propaganda in Europe
“Amazon one click webshop patentable in Canada,” says Benjamin, the president of the FFII. “I predict an upswing of foreign filing activity in Canada,” argues Patrick Anderson, a graduate of MSU-Law, whom Benjamin cites. Here is a short analysis of the situation:
Blame Canada! Amazon Wins Argument at the CA Federal Court Over ‘One-Click’ Patent
After a decade-plus battle at the Canadian Patent Office and Patent Review Panel, the Canadian Federal Court made the following ruling on business method patents:
At its core, the question is whether a “business method” is patentable under Canadian law. For the reasons which follow, the Court concludes that a “business method” can be patented in appropriate circumstances.
We also alluded to this yesterday while covering the FSFE’s position. The FSFE was mentioned earlier in the week in relation to EU policy and BSA lobbying [1, 2]. Here is the refutation as text, starting with this introduction:
The Business Software Alliance (BSA) is pressuring the European Commission to remove the last vestiges of support for Open Standards from the latest version of the EU’s interoperability recommendations, the European Interoperability Framework.
FSFE has obtained a copy of a letter sent to the Commission by the BSA last week. In the following paragraphs we analyse the BSA’s arguments and explain why their claims are false, and why Open Standards are key to interoperability and competition in the European software market. We have shared this analysis with the European Commission.
Europe must not repeat the mistakes made by the USPTO. Neither should Canada. There are research groups which repeatedly show that more patents can simply discourage progress and here is one recent study whose abstract states:
We offer description and analysis of the 2008 Berkeley Patent Survey, summarizing the responses of 1,332 U.S.-based technology startups in the biotechnology, medical device, IT hardware, software, and Internet sectors. We discover that holding patents is more widespread among technology startups than has been previously reported, but that the patterns and drivers of holding patents are industry and context specific. Surprisingly, startup executives report in general that patents are providing relatively weak incentives for core activities in the innovation process. Our analysis uncovers that the drivers of startup patenting are often associated with capturing competitive advantage, and the associated goals of preventing technology copying, securing financing, and enhancing reputation – although again these and other motives depend on firm and industry factors. We also find substantial differences in the roles played by patents for startups in the biotechnology and medical device sectors – where patents are more commonly used and considered important – as compared to those operating in the software and Internet fields – where they are less useful. Interestingly, venture-backed IT hardware startups tend to resemble those in health-related fields in terms of their use of and motives for patenting. We generally find a wide disparity between the patenting behavior of venture-backed technology startups and those that are not funded with venture capital. We also discover that, when choosing not to patent major innovations, startups often cite to cost considerations, although again the motives to forgo patenting differ according to firm and industry characteristics. The respondents to our survey also generally report that checking the patent literature and licensing patents from others is reasonably common, although there too results differ according to the context. Other findings are discussed.
Canada seems to have become somewhat of an additional front for US conglomerates not just to export copyright law to; software patents too are becoming an issue worth tackling. The i4i case and 01 Communique show that it needs addressing. The sooner, the better. █
