Thursday, May 24, 2012

A forum on software patents

Participants of International Boxing Tournament in Armenia

Fellow blogger Patentology comments on a recent IP Forum held by the Australian Patent Office (IP Australia) in Sydney on the subject of 'software patents'. There are independent reports of the event by (IP Australia debates software patents), ZDNet Australia (The world needs patents: Uniloc founder), and (Do software patents stifle innovation?).

Facts and figures

Deputy Commissioner Phil Spann delivered some facts and figures. According to Spann, computing-related patent applications have increased moderately since 2003, in line with an increase in patent applications in general. Computing-related applications account for 6% of Australian patent applications. This compares with 4% in Germany, 6% in China and Japan, and 10% in the United States.

It perhaps would have been more useful for Deputy Commissioner Spann to talk about issued patents rather than patent applications. After all, the event was about 'software patents' not 'software patent applications'. It would have been interesting to see what percentage of issued Australian patents are computing-related.

I did some research a year or two ago on the New Zealand position. There were around 34,000 current patents in New Zealand across technology areas. Out of this number there were just over 1,000 granted patents that Deputy Commissioner Spann would consider to be computing-related. So that means that granted software patents make up just 3% of the total number of New Zealand patents.

A subjective view

Open source enthusiast Ben Sturmfels argued that the real winners in the patent debate are large corporations that have a significant portfolio of patents because those corporations can use their patents to threaten other companies for “getting on their turf".

He admitted that patents may be useful for certain industries, but harmed the fast-paced software industry, where "you get people inventing the same thing ... all at the same time. By saying someone has more right to an idea than someone else, just because they've filed a patent before anyone else has, that's just silly. People don't use the patent system in the way that it's intended. They don't read patents to stay up to date with state-of-the-art things. So they can't search for and avoid patents that already exist in the system. That's the real trouble."

An objective view

Australian inventor Ric Richardson spoke in favour of software patents. He disagreed with Sturmfels on several points.

He mentioned that he doesn't personally “see a lot of small guys getting squashed by big guys because in the end, if you have a patent that protects what you’re doing, they actually value that and it’s part of your whole acquisition strategy".

Without software patents, said Richardson, only the biggest players would benefit from original ideas, rather than the person who had conceived the idea in the first place. "What you say about [patents] stymieing innovation is wrong in my mind. You have great ideas in software development, and you should benefit from coming up with a great idea. To go and say everything should be free and it's only the guy that can [get to market first] is the one that should benefit from it is to encourage stealing."

The New Zealand view

Sturmfels reportedly failed to win over the audience of developers and lawyers at the event. Similarly, here in New Zealand I have seen little factual basis for the contention that New Zealand software patents are stifling innovation and preventing small companies from succeeding.

In fact, submissions a couple of years ago on the New Zealand Patents Bill emphasised that innovation is strong, even "rampant" with the law that's in place. One said the software industry is "highly competitive, innovative and prosperous". Another pointed out that New Zealand was appealing "due to the healthy and innovative software industry here".

Photo courtesy of author PanARMENIAN under Creative Commons licence.

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