Patent fears haunt developers down under

Software patents could be used for anti-competitive practices, as large IT players form a cartel in order to keep out smaller players, warns legal expert

"Patents are being used as an offensive measure," John MacPhail, a partner at Baker & McKenzie, told attendees at a forum on software patents in Sydney on Wednesday.

"People are pooling and accumulating patents so that they can cross license with other players and make it harder for the little guys," MacPhail said. "It's a rich player's business. If you don't have any patents, you don't have any weapons in your armoury."

Indicative of a growing interest in patents, attendees swelled the forum -- hosted by legal firm Baker & McKenzie and open source advocacy groups Linux Australia and Open Source Industry Australia -- to hear speakers discuss the many vagaries of patent laws.

MacPhail detailed the challenges for players trying to obtain a patent. In order for a patent to be granted, explained MacPhail, the invention or software need to be considered novel.

"However, the [patent] examination process is imperfect, particularly with IT space. You don't have that higher art that has been built up into the older industries such as big pharma or mining industries, against which the novelty or inventiveness of the patents can be judged."

The process of searching through existing patents is also flawed. "You'll be a fool if you think you have 100 percent accuracy, even if you searched the registry properly," MacPhail said.

Patent researcher Bob Kemp, whose firm RE Kemp & Co. checks whether there is an existing patent when a patent application is filed, added searching for software patents in particular is "a real nuisance".

"In Australia alone, there are 10,000 applications filed in [that] class… If you ever try to do a search in that class, you try to think of key words and you'll find all the words you can think of are in most other patent abstracts. You might get the list down to 7,000."

"I'm not a patent attorney, I'm a searcher. I don't have an axe to grind in terms of law. But this is an expensive endeavour. People who are not heavily funded will not be successful in obtaining their patent through patent records," Kemp said.

Using the examples of the diaphragm valve of a washing machine, Kemp added the issue of patent used to control a market is not unique to the software industry.

"General Electric have hundreds and hundreds of patents on [diaphragm] valves. Most have never been made and I suspect they never intended to make them. What they've done is create a sterile area that no one else can play in."

"There is a lot of fear amongst the software developer community right now," said Kim Weatherall, a director at Intellectual Property Research Institute of Australia, a research centre at the University of Melbourne told ZDNet UK sister site ZDNet Australia.

"The US has a lot of problems due to the number of patents, the shortness of review time to grant the patent and the litigious environment," said Weatherall. While the Australian system doesn't have the same problems at every level, Weatherall said it "needs to be monitored [as] the FTA [the Australian Free Trade Agreement with the US] may lock us in to an inflexible system," she added.

Siobhan Chapman reported from Sydney for ZDNet Australia. For more ZDNet Australia stories, click here.