[plug] Software patents

[Bernd Felsche]

On Tuesday 10 August 2004 01:46, Shayne O'Neill wrote:
> Ok. But we really need to start writing letters to FEDERAL labor
> (and lib, but those guys are probably hopeless)  MP's asking for
> either the US patents stuff to be nixed, or some sort of
> ammendments either;-
> 1) excluding software
> 2) specific protections against using patents to protect monopolies
> (Including by proxy)
> OR
> 3) specific protections against using patents against open source.

> Obviously 1 is the best go, followed by 2 then 3.

Preferential treatment of a particular industry may not go down too
well and it may been seen as favouritism.

The FTA appears (*) to remove all requirements for tests for
obviousness on Patent approval. At present, Patents which are
obvious to somebody "skilled in the art" are disallowed.

That impacts on all businesses.

(*) The FTA includes a large amount of foreign language text that is
not in common use in Australia. I can't even find some of the phrases
in online legal dictionaries! English is sufficiently kleptolectic
to not warrant resorting to a foreign language which has no native
speakers and is hence absent of definitive interpretation.

> Whats perhaps needed is that letters need to be written from the
> perspective of IT PROFESSIONALS, and how it affects our industry.
> Unfortunately the only cats on the case seem to be the activist scene,
> and the mainstream parties just aint gunna listen to them.

The point must be made that many of the Patents which do exist in
the US patent system are "inventions" that ARE obvious to skilled IT
professionals. They are things that competent IT professionals
develop during the *normal* course of their work.

The US system relies on "prior art" tests which has degenerated to
basically a cursory scan of prior Patents. It's not difficult to see
why so many obvious "inventions" have been granted Patent.

For small to medium enterprises, it's untenable to defend against
litigation against large corporations who have been granted such
spurious Patents, simply because of the legal costs.

But it's not just the defence against legal challenges that are the
issue; it's the possibility of infringing against which businesses
must protect themselves. A products may infringe against hundreds of
Patents that protect what is obvious. As such, businesses must be
aware of possibly tens of thousands of Patents in addition to their
core pursuit of daily business, lest they infringe.

Removal of the test for obviousness imposes an onerous burden on
such businesses when threatened by legal action, stifling the
majority of development and innovation in Western Australia.

Several aspects of "Rights Management" presented in the FTA run
contrary to what the ACCC has in the past deemed to be acceptable.

Copy and access control measures do not enforce Copyright. They in
fact are contrary to Copyright which _grants_ the right to copy
things for fair use. When the "Rights Management" systems prevent
such fair use, they infringe upon Copyright. The FTA exempts
libraries, and non-profit organizations from being tarred with the
"criminal" brush if they circumvent "Rights Management"; but all
persons have those very same rights of fair use under Copyright.

A large proportion of Australian households already have equipment
that circumvents such "Rights Management" systems. The access
controls which those "Rights Management" systems attempted to impose
were ruled against by the ACCC and the circumvention methods were to
be made available to the end-user. I refer of course to multi-zone
DVD players.

If the enabling legislation of the FTA comes into force, then
millions of Australians will be ruled criminals.

> We really have to bombard the pollies with this stuff.

I have a feeling that FTA actually stand for "F*ck The Australians".

Feel free to copy and paste any of the above when drafting your
letters to senators and local members.

-- 
/"\ Bernd Felsche - Innovative Reckoning, Perth, Western Australia
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