Bonum Certa Men Certa

'Harmonisation' Tricks Down Under; TechInsights Explains How to 'Cheat' and Patent Software

Australia on globe



Summary: South Pacific patent laws and how loopholes are made to allow software patents through "physical" appendages or "transformations"

OVER in Australia it oughtn't be hard to patent software, but Australia is one of the very few countries which permit monopolising algorithms. Based on Patent Baristas, "Australian Patent Office Refines Test for Patentability of Business Methods" and this applies to software too:



Prior to the subject decision, the governing precedent was Grant v Commissioner of Patents [2006] FCAFC 120 (“Grant”). Grant stood for the proposition that a method must produce “a physical effect in the sense of a concrete effect or phenomenon or manifestation or transformation”. Grant went on to say that a change in the state or memory of a computer may be a “physical effect”.


Patentors of software can use the "embedded" trick in New Zealand following some changes which were not exactly ideal, but there are still claims of disparity between Australian and Kiwi patent laws.

Australia and New Zealand may be close geographically and culturally, but when it comes to patent protection, their paths have started to diverge. When talking to clients, whether in Australia or elsewhere, I usually mention the possibility that they could also pursue patent protection in New Zealand. In those discussions, it often becomes clear that the client assumes the patent provisions of the two countries are, by and large, synonymous. This is not so. While harmonisation of the IP laws of these South Pacific cousins continues to be the subject of much discussion on both sides of the Tasman, the reality of achieving this seems (sadly) increasingly unlikely in the context of recent developments.


Notice the use of the word "harmonisation"; in such cases, the more dominant force usually imposes its laws upon the subordinate one. This trick was being called the same thing -- namely "harmonisation" -- when American software patents lobbyists were trying to legalise software patents in Europe [1, 2].

One post-Bilski analysis that we missed last month came from TechInsights and it helped explain the tricks for patenting software. To quote the opening:

For over a decade the fundamental intellectual property rights of an innovation implemented in software have been held ransom as the appeals on the case, "Bilski et al. v. Kappos ..." worked their way through the system to the Supreme Court. Prior to the Supreme Court's recent ruling, software and process patents were on very shaky ground due to the assertion by a lower court that a claimed process is only patent-eligible if it is tied to a particular machine or apparatus, or it transforms a particular article into a different state or thing.

The Supreme Court's June 28th, 2010, decision on the Bilski case was an affirmation of the viability of patent protection for innovation implemented in software. However, uncertainty still exists as a clear test for patentable subject matter was not established. The Bilski patent was found to claim an abstract idea and as such was determined not to be patentable. Demonstrating the tangible nature of a patented innovation will likely be a key to successfully defending patent rights in the software space.


It sure seems like these tests for physical attributes and transformation are what eventually defines/determines many countries' policy on patents. As such (pun intended), policy regarding software patents is not a binary condition and it's important to recognise the familiar loopholes which are used to permit software patents.

Recent Techrights' Posts

Rust People: Drain the Swap, You're Holding It Wrong
Does Rust make sense?
Slopwatch: LinuxSecurity, linuxconfig.org, and Plagiarised Phoronix
Many articles out there are nowadays fake
European Patent Office Illegally Gutting and Outsourcing Its Functions, Acting Like an Above-the-Law Commercial Business (It Won't Stop at Formalities Officers (FOs) and Classification Slop at the EPO)
breaking/violating laws and conventions
Links 19/09/2025: Lobbyist of American GAFAM Becomes Data Protection Commissioner in Europe
Links for the day
 
Links 20/09/2025: Internet Shutdowns, Media Censorship, and Climate Worries
Links for the day
About 700 New Gemini Capsules in 13 Months (or 54 Per Month)
4.8K would represent a 20% increase
Techrights the Name Turns 15
About 6 weeks from now we turn 19
Microsoft is Running Out of Time and Floating Fake Figures, Fake Projects, Fake Narratives, Fake Excuses
Also, a lot of Microsoft's "revenue" claims are circular financing (i.e. Microsoft buying from itself, which means Ponzi-like fraud)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 19, 2025
IRC logs for Friday, September 19, 2025
Gemini Links 20/09/2025: Navigating the Pressures of Modern Life and SpellBinding Accidentally Wrote Another Gemini Server
Links for the day
Links 19/09/2025: Press Freedom Dying in US, Anti-Austerity Strikes in France, and Alan Rusbridger to Leave 'Prospect'
Links for the day
Offloading to the Sister Site
In the interest of not overwhelming readers
Links 19/09/2025: Coffee Club and "SpellBinding is Now Absurdly Fast"
Links for the day
Links 19/09/2025: Media Freedom Ceases to Exist in US, "Consider Dropping Twitter/X"
Links for the day
Gemini Links 19/09/2025: Thinking and Insect Bites
Links for the day
Microsoft E.E.E.: Git Will Now (or Very Soon) Fully Depend on Rust, Which is Controlled by Microsoft
Microsoft now makes Git dependent on Rust, or making Git dependent on GitHub, which is proprietary
The Right to Punch People (Apparently)
At Brett Wilson, Brett's job title is "Head of Crime" and Wilson normalises calls for violence
Slop or Fake Articles Have Turned Linux Journal From a Pioneering/Trailblazing "Linux" Magazine Into a Nuisance
some sites with former reputation - good reputation - turn into cesspools
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 18, 2025
IRC logs for Thursday, September 18, 2025
Brett Wilson LLP Seem to Have Had Only One Litigation Client in 2025, He Was Previously Charged, Just Like the Serial Strangler From Microsoft (Whom They Now Represent)
Karma is superstition, regulators are not
Project 2030 to Cover How "Project 2025"-Styled Anti-Media Zealots From America Targeted Techrights and Tux Machines
The common denominator is also their attacks on women
Brett Wilson LLP Failed to Meet Deadlines Set by Judge 7 Months Earlier, Tried to Ruin Our Holiday, Then Had the Audacity to Ask Us for Over 3,000 Pounds for Its Own Lateness
As a matter of principle we will never respond to assassin while we are on holiday
On Claims That After Bluewashing Red Hat Will Increasingly Become an Indian Company
Discussed this week (long and detailed)
Americans Attacking British Sites Only Months After They Leave America
We find it kind of funny if not ironic that this site, originally an American site, got legal harassment only from Americans and only months after it had moved to the UK
Despite Losing Over a Quarter Million Dollars a Year Software in the Public Interest (SPI) Gives Helping Hand to Libreboot
SPI's financial state depends a lot on its public image or its reputation
Slopwatch: Google Helps Plagiarism and Sends Traffic to Ripoff Artists
That Google as a company helps spamfarms is noteworthy
If You Want to Know the Future, Listen to the Free Software Foundation (FSF) and Andy Farnell
We're sure the FSF will have plenty of its own output
Links 18/09/2025: A Taliban Ban on Internet Access and Troubled US Job Market
Links for the day
Gemini Links 18/09/2025: Computer Literacy and Accessing Alhena's Database
Links for the day
Links 18/09/2025: US War on Media (Truth Banned, Cancel Culture by the Hard Right), NYT Chief Executive Warns Cheeto is Deploying ‘Anti-press Playbook'
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 17, 2025
IRC logs for Wednesday, September 17, 2025