Australia's software future patently unclear

It seems anger about software patents is really coming to a head.
Written by Suzanne Tindal, Contributor

It seems anger about software patents is really coming to a head.

The Pirate Party published its submission to the government's Review of the Innovation Patent System.

The system was introduced in 2001 to help innovation in Australian small to medium-sized businesses, enabling them to protect low-level innovation by lowering the threshold of inventiveness required for patent protection.

However, the government decided to hold a review of the system after concerns were raised about it; for example, it was simply being used as a placeholder while companies sought a real patent, or that it was difficult to prove that such patents weren't original, instead taking advantage of someone else's work. Software is currently included in the type of products that can be awarded an innovation patent.

These patents currently include software. One of the questions raised by the review was whether software ought to be excluded from being awarded an innovation patent.

The Pirate Party said that an expansion of the patent system such as the innovation patent, which provides easy patentability of incremental innovations, was "no solution to the plague of issues that the patent system causes".

Indeed, the party did not limit itself to criticism of the innovation patent, but launched into a set of arguments as to why software ought to be left out of the patent system altogether.

The party said that software algorithms were mathematics, which was unpatentable. Even if this argument wasn't used, the party said that the fact remained that software patents were regularly abused, highlighting the case of the "1-click" patent by Amazon, which it considered to be fundamental to internet shopping.

Some companies exploited patents as a source of income, by suing successful companies for their use of those patents, the party said. Other companies used them only as a safety net against violations of other major companies' patents.

This meant that start-ups were buried under the costs of trying not to infringe on patents and defending themselves from lawsuits. Software developers lived in fear of being sued for breach of patent with every new piece of code. The only people who were benefiting from software patents were patent lawyers, proved by the Apple-Samsung war currently going on in Australian courts.

The party believed that abolishing software patents in Australia would encourage local innovation and attract foreign investment, because the country would become a "safe haven from the patent storm". According to the Pirate Party, Australia's innovation push is hobbled by the patent system, which it said "stifles innovation and lobotomises local industry".

With the National Broadband Network (NBN) on its way, it would be hoped that Australia is able to capitalise on its new broadband speeds and create innovation. I hope that the government carefully considers excluding software in its review of the innovation patent, but also goes further, to consider its viability in the patent system in general. After all, we want to make sure the NBN naysayers get their just deserts.

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