Ending Software Patents in Australia

This guest tutorial talk was given by Ben Sturmfels for Introduction to Computing Technology at Monash University, 10 October 2011.

example: letter of demand
- demanding significant licensing fee or court
- you'd rather write software
- settle or court?
about software patents
our campaign against them
in short
- patents are a bad fit for computing
  - opposite of promoting innovation
  - society and people who write software lose
- society would be better off without software patents

forget what you know about copyright
monopoly on products, methods or processes
- right to exclude others
- term of up to 20 years
- not automatic, must apply
- independent invention is not a defence
why would we do this?
- artificial, no intrinsic right
- trade off for benefit of society, eg. speed limits
- society trades public disclosure for exclusivity
  - in theory, promotes progress that will benefit society
  - in practise, may be bad deal for society
my concern is software patents only

"software" not a great description
- not just the software itself
- the algorithm
patents on computation and information processing
- a.k.a. "business methods"
software is a new thing
- assumed patents good for software too

major factors:
- National Research Development Corporation v Commissioner of Patents (1959)
  - set new precedents on scope of patentability (chemicals)
- Patent Act 1990 (1991)
  - didn't exclude software (among other things)
- approaches taken by US Supreme Court
first Aust. examples:
- IBM Corporation v Commissioner of Patents (1991)
  - displaying curves on a screen
- CCOM Pty Ltd v Jiejing Pty Ltd (1994)
  - generating Chinese characters
now widely patentable in Australia

large tech. companies amass patent arsenal
- mutally assured destruction
- large expense, but they're safe
patent troll companies (companies that don't make anything)
- make money through extortion
laywers do well
everyone else loses
no one talks about it
- non-disclosure
some patents so broad, so basic that nearly everyone infringes
- land mine effect
borders of a patent unclear
- vaugue language
- benefits in being non-specific
- can't understand my own invention
  - reading patents not useful
not viable for businesses to search for nor defend against
- can't keep up with new patents
- process is furry and uncertain to technical people
- fear, chilling effect
- actively inhibit innovation
write software won't get sued for, rather than good software
cost billions to society
- software tax
- public expense of court cases
- poor software
- unjust
useful technologies locked up
explosion of litigation

independent invention common
relatively complex
- basic programs have hundreds of ideas
heavily based on work of those before us
rapid evolution
abstract: rather than machine, claiming technique
long history of innovation without patents
- why start now?
- what if patent on hyperlinks?
- Knuth: his work not possible if patents in 1980s
innovation continued without patents
- VET (antivirus 1989)
- Trumpet Winsock (internet connectio 1993)
- rsync (data syncronisation 1996)
- netfilter/iptables (firewall 1998)
system was not designed for software

WebM (VP8) is a web standard
- irrevocable royalty free license
H.264/MPEG-4
- temporary license to create addiction
- Microsoft/Apple only support this
  - could easily add WebM
  - buddies with MPEG LA (aggressive patent corporation)
major browsers are still incompatible in 2011
this video

defending against/removing stupid patents isn't enough
the ultimate mistake is allowing them in the first place
fix the source of this problem
- end software patents
why did I get involved?
- Richard Stallman talk (2004)
- Ciarán O'Riordan - Irish end software patents activist (2010)
  - we missed the 2009 "patentable subject matter" review
- Melbourne Free Software interest group

Online letter
- a Slashdotting and over 1000 signatures
- response acknowledged industry concern
  - concern of recent study
  - lack of communication with industry
Petition to Australian House of Representatives
- also over 1000 signatures
- accepted and presented to House
  - we were mentioned in the 2009 review final report
  - some doubt on benefit of software patents
  - but no changes
Ambassadors
Coalition

similar patent system
some differences in Aus
- no triple damages
- first to invent in US, first to patent in Aus
US parties bear their own legal fees
- losing party bears most in Aus
- discourages frivolous litigation
- patent defense is still very expensive $40,000 - several million
- settlement still common
think US patents don't automatically apply here
- common to file in many countries
- treaties simplify this
  - eg. automatic acceptance

proposed legislation to abolish software patents
- still allows patents on "embedded devices"

both proprietary and free software affected
free software projects vulnerable
major free software licenses have patent provisions:
- GPL version 3
- Apache version 2
- not immune, but major benefit

today has been a whirlwind tour
I find the details interesting, but the issue isn't complicated
software patents affect everyone
- especially you
- we need to affect change
As per intro:
- patents are a bad fit for computing
  - opposite of promoting innovation
  - society and people who write software lose
- society would be better off without software patents
not a sexy issue, but tide of opinion is strong
will take a long time, but I'm confident we will win
- with your help!

Author: Ben Sturmfels