04.29.16
Australia Might be Next to Block Software Patents If Commission’s Advice is Followed
Summary: Australian advice against software patents, which can hopefully influence Australian politicians and put an end, once and for all, to all software patents in Australia
Australia’s long fight over the issue of software patenting was covered here in the not-so-recent past. It was about half a decade ago. See the following articles for instance, as well as this Wiki section (Australia):
- Australia at Software Patents Risk
- Update on Software Patents in the US, Australia, and New Zealand
- Australians Asked for Opinion on Software Patents in New Review
- The Free Software Foundation Fights Software Patents in the Southern Hemisphere
We also mentioned Australia’s stance more recently in articles such as:
- The Demise of Software Patents in Australia and the Unites States Worries Patent Lawyers
- Patents Roundup: SCOTUS, U.S. Code § 101, CAFC, PTAB, and Software Patents in the Far East (Australia, Korea, Taiwan, China)
- Listening to Patent Lawyers Who Never Wrote Any Code to Decide on Software Patents
- Software Patents in the United States as Explored in Light of Some of the Latest Cases
In a nutshell, while Australia does not officially boast tolerating patents on software, it does in fact allow many of them, unlike New Zealand.
There was some good news in this morning’s press coverage as according to this article, titled “Dump software patents, allow geoblocking bypass: Productivity Commission,” things may be about to change:
Australia should remove the ability to patent software and allow consumers to circumvent geoblocking of services like Netflix, the Productivity Commission recommended today.
The commission today published a set of far-reaching draft recommendations to the government to redress the balance of intellectual rights away from rights holders and in favour of users.
Among its recommendations, the commission said Australians should be able to access online content in a timely and affordable manner.
Echoing the findings of both the Harper competition review and the parliamentary inquiry into IT pricing, the Productivity Commission said restrictions by rights holders were having the opposite effect and actually encouraging internet piracy.
[...]
Australia’s patent system similarly needs an overhaul, according to the commission.
It believes the system is poorly targeted, with some “inventions” bordering on trivial and being protected for too long.
This creates low quality patents, stymies competition, and frustrates efforts of follow-on innovators while raising costs for the entire nation, the commission argued.
Business methods and software should not be able to be patented, the commission said, as it discourages software innovation and provides strong incentives to block competitors and hinder software development.
Australia currently affords “excessive” patent protection to business methods and software, with terms longer than development cycles, it said.
The commission pointed to the open source movement as providing incentives to innovate and disseminate new software without the need for patent protections.
As copyright also covers software, the commission said this raises the question about whether multiple forms of intellectual property protection is needed for computer code.
It said excluding business methods and software from the patent system would bring Australia in line with other nations.
Here is what CBS (US) wrote about it:
Business methods and software (BM&S) should be completely excluded from being patentable, the commission recommended, because the patent term is “far longer than the development cycle of BM&S”. It pointed to open-source software as proof of a more beneficial alternative for the community.
“[BM&S] patents have rarely spurred software innovation, but provided strong incentives for strategic behaviour to block competitors and hinder software development,” the draft report argues.
“In some cases, the BM&S is obsolete by the time a patent for it is granted … The open-source movement demonstrates that incentives to innovate and disseminate new software can occur in the absence of patent protections.”
Australia is evidently close to officially banning such patents, but only if it follows the Commission’s findings. This would be well overdue. Here is another article which speaks about patent scope a little more broadly:
Other recommendations include not extending the period of protection for registered designs, fine-tuning the trade marks and plant breeders statutes, belatedly including an Objects clause in the Patents Act, rethinking the controversial ‘innovation’ patents arrangements and bringing intellectual property transactions under Australian competition law. Efforts to streamline the regime will involve substantial investment in the Patents Office and dysfunctional Therapeutic Goods Agency. We can expect patent practitioners to savage the Commission’s stance on what it regards as trivial patents, alongside its call to deny business patents and software patents. ‘Big Pharma’ will again damn calls to wind back practices such as evergreening, extended periods of protection for pharmaceuticals and undue protection for test data.
Many other articles alluded to this but focused on pharmaceutical patents and/or geo-blocking for more attention to be placed on these other contentious issues [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19].
Is Australia going to do the right thing, which software developers actually want, and ban software patents? Contacting one’s representatives might help bring rise to bills to that effect in the Australian authorities. █
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