Hughes, Anton --- "A Comment on Software, Patents, Innovation and Openness" [2003] JlLawInfoSci 3; (2003) 14 Journal of Law, Information and Science 50
[*] BE (Computer Systems), LLB. The author is currently studying towards an LLM at the University of Tasmania.
[1] DiBona C, Ockman S and Stone M, ‘Chapter 1: Introduction’ in Di Bona C & Ockman S (eds) Open Sources: Voices from the Open Source Revolution, O’Reilly & Associates, 1999.
[2] Merton and others identified the norm of communalism as being of central importance to the scientific community, as early as the 1950s. See for example, Merton R, ‘The Normative Structure of Science’ in The Sociology of Science (University of Chicago Press, 1973). cited in Burk DL, ‘Cyberlaw and the Norms of Science’ (1999) Intellectual Property and Technology Forum:
http://infoeagle.bc.edu/bc_org/avp/law/st_org/iptf/commentary/content/burk.html
(18 March 2005)
[3] Sol S, ‘From the Beginning’, Web Developer’s Virtual Library, 19 July, 1998:
http://wdvl.com/Internet/UNIX/Intro/history.html
(22 March 2005)
[4] The BSD distribution continues to this day in various forms, such as the FreeBSD, NetBSD and OpenBSD projects. FreeBSD forms the basis of Apple’s Macintosh OSX operating system.
[5] For a more detailed history of the BSD project, see McKusick MK, ‘Twenty Years of Berkeley Unix: From AT&T-Owned to Freely Redistributable’ in Di Bona C & Ockman S (eds) Open Sources: Voices from the Open Source Revolution, (O’Reilly & Associates, 1999).
[6] National Research and Development Council v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252.
[7] Reynolds R and Stoianoff N, Intellectual Property: Text and Essential Cases, (Federation Press, Sydney, 2003), at 268, fn 46.
[8] See Cohen JE and Lemley MA, ‘Patent Scope and Innovation in the Software Industry’ (2001) 89 California Law Review 1:
http://www.law.georgetown.edu/faculty/jec/softwarepatentscope.pdf (2 November 2004) at 8.
[9] Fisher WW, ‘Intellectual Property and Innovation: Theoretical, Empirical, and Historical Perspectives’ (2001) 37 Industrial Property, Innovation, and the Knowledge-based Economy, (Beleidsstudies Technologie Economie):
http://cyber.law.harvard.edu/people/tfisher/Innovation.pdf
(2 November 2004) at 23.
[10] A necessary step to understand the way the software works.
[11] Above n 9, at 23.
[12] See Reichman JH, ‘Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation’ (2000) 53 Vanderbilt Law Review 1753.
[13] Samuelson P, Davis R, Kapor M, and Reichman J, ‘A Manifesto Concerning the Legal Protection of Computer Programs’ (1994) 94 Columbia Law Review 2308, at 2316.
[14] Apple Computer Inc v Computer Edge Pty Ltd [1947] ArgusLawRp 3; (1984) 53 ALR 225.
[15] Ibid, at 184 per Gibbs CJ.
[16] Hollinrake v Truswell [1894] UKLawRpCh 158; [1894] 3 Ch 420 at 424-425.
[17] Ibid.
[18] Samuelson et al, above n 13 at 2315.
[19] Ibid, at 2318.
[20] There is a vast body of literature on the relationship of copyright and software which it is beyond the scope of this paper to consider. For an excellent account discussion of the strengths and weaknesses of copyright protection for software, see Samuelson et al, above n13.
[21] [1972] USSC 223; 409 U.S. 63 (1972).
[22] Cohen & Lemley, above n 8 at 8.
[23] Ibid.
[24] [1981] USSC 40; 450 U.S. 175 (1981).
[25] Fisher WW, ‘The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States’ in Eigentum im internationalen Vergleich, (Vandenhoeck & Ruprecht, 1999), 265-91:
http://cyber.law.harvard.edu/people/tfisher/iphistory.pdf
(2 November 2004) at 270.
[26] Cohen & Lemley, above n 8 at 8.
[27] In re Freeman 573 F.2d 1237 (C.C.P.A. 1978); In re Walter 618 F.2d 758 (C.C.P.A. 1980); In re Abele 684 F.2d 902 (C.C.P.A. 1982).
[28] Drjya MJ, ‘Looking to the Changing Nature of Software for Clues to Its Protection’:
http://www.dryjapat.com/look.htm
(3 January 2005) at [40].
[29] Cohen & Lemley, above n 8 at 9.
[30] Australian Patent Office, Guidelines for Considering the Patentability of Computer Program Related Inventions, 1986. Cited in Reynolds & Stoianoff, above n 7 at 268.
[31] [1991] FCA 625; (1990) 105 ALR 388.
[32] Ibid at 395.
[33] Ibid at [14].
[35] CCOM Pty Ltd and Another v. Jiejing Pty Ltd and Others [1994] FCA 396; (1994) 122 ALR 417:
http://www.austlii.edu.au/au/cases/cth/federal_ct/unrep6887.html (2 Nov 2004).
[36] Ibid, at [100], [106], [128].
[37] Australian Patent Office, Manual of Practice and Procedure:
http://www.ipaustralia.gov.au/resources/manuals_patents2.shtml
(2 November 2004) at 8.2.7.2.
[38] Ibid, at 8.2.7.3.
[39] Ibid, at 8.2.7.4.-8.2.7.6.
http://www.ipaustralia.gov.au/pdfs/statistics/Standard%20Grants%20by%20Tech%2092-03.xls
(12 January 2005).
[41] See Unisys Corporation, ‘LZW Patent Information’: http://www.unisys.com/about__unisys/lzw
(15 January 2005) for more information on this patent. Although the original patent has expired, Unisys have patents pending for alleged improvements to the algorithm. For more on the controversy surrounding this patent, see League for Programming Freedom, ‘Unisys/Compuserve GIF Controversy’:
http://lpf.ai.mit.edu/Patents/Gif/Gif.html
(11 November 2004)
[42] Stallman R, ‘The Danger of Software Patents’ Speech at Cambridge University 25 March 2002:
http://lpf.ai.mit.edu/Patents/danger-of-software-patents.txt
(11 November 2004).
[43] Foundation for a Free Information Infrastructure, ‘Viterbi: 1 Algorithm, 4470 Patents’:
http://swpat.ffii.org/patents/effects/viterbi/index.en.html
(12 January 2005)
[44] Ibid.
[45] A search was made on 22 March 2005, using the search page provided by IP Australia at:
http://apa.hpa.com.au:8080/ipapa/qsearch?
A total of 54 results were returned, the most recent being application 2003255971. This application, filed by Koninklijke Philips Electronics N.V. is entitled ‘Viterbi Bit Detection Method and Advice’ and has a priority date of 26 September 2002.
[46] [1998] USCAFED 107; 149 F.3d 1368 (Fed. Cir. 1998), cert. Denied, 525 U.S. 1093 (1999) at 1373. See the discussion of the case in see Cohen & Lemley, above n8 at 10.
[47] Christie A and Syme S, ‘Patents for Algorithms in Australia’ (1998) 20 Sydney Law Review 23 at 527.
[49] See APO, Manual, above n37 at 8.2.7.3.
[50] See the discussion in section 1.3 above.
[51] Fisher, above n 9 at 24-25.
[52] Ibid, at 25.
[53] Commonwealth of Australia, ‘Patents Bill 1990: Second Reading’ Senate, 29 May, 1990’:
http://parlinfoweb.aph.gov.au/PIWeb/view_document.aspx?id=562046&table=HANSARDS
(2 November 2004).
[54] Loughlan P, ‘Patents: Breaking into the Loop’ [1998] SydLawRw 24; (1998) 20 Sydney Law Review 553 at 567.
[55] Bessen J and Maskin E, ‘Sequential Innovation, Patents and Imitation’ (2000) MIT Working Paper:
http://www.researchoninnovation.org/patent.pdf
(11 November 2004) at 3.
[56] Boyle J, ‘Enclosing the Genome: What the Squabbles over Genetic Patents Could Teach Us’ To be published in F. Scott Kieff (ed), Perspectives on the Human Genome Project:
http://www.law.duke.edu/ip/pdf/enclosing.pdf
(1 September 2003) at 9.
[57] Advisory Council on Intellectual Property, ‘Patents and Experimental Use’ (2004) Options Paper. at 25 per submissions of Epitan Ltd and GTG Technologies.
[58] Ibid, at 24 per Eisenberg.
[60] See Loughlan, above n 54 at 555-559.
[61] Boyle, above n 50 at 11.
[62] Ibid at 9.
[63] One can’t help but notice the irony of such an argument, namely, that the commoner won’t understand the commons. On the political reach of the maximalist camp see Perelman M, ‘The Political Economy of Intellectual Property’ (2003) 54(8) Monthly Review
http://www.monthlyreview.org/0103perelman.htm
(6 November 2004).
[64] Loughlan, above n 54 at 553.
[65] Ibid.
[66] See Wearden G, ‘Serious setback for European software patents’ ZDNet UK, 17 November, 2004
http://uk.builder.com/manage/business/0,39026582,39224199,00.htm (5 January 2005)
[67] EuroLinux Alliance:
http://petition.eurolinux.org/signatures.html
(11 January 2005).
[68] Boyle, above n 56 at 13-15.
[69] Ibid, at 15.
[70] Fisher, above n 9 at 2-3.
[71] Ibid, at 4.
[72] Loughlan, above n 54 at 569.
[73] Nuffield Council on Bioethics, ‘The ethics of patenting DNA’ (2002) Nuffield Council on Bioethics:
http://www.nuffieldbioethics.org
(2 November 2004) at 12.
[74] Emphasis added.
[75] See Burk DL and Lemley MA, ‘Is Patent Law Technology-Specific?’ (2002) 17 Berkeley Tech. Law Journal 1155:
http://ssrn.com/abstract=349761
(2 November 2004) at 8-9.
[76] Australian Law Reform Commission, ‘Genes and Ingenuity: Gene Patenting and Human Health’ (2004) ALRC 99:
http://www.austlii.edu.au/au/other/alrc/publications/reports/99/ (2 November 2004)
[77] [1994] FCA 1065; (1994) AIPC 91-076, 28 IPR 383.
[78] Bristol-Myers Squibb Co. v F H Faulding & Co. Ltd. [2000] FCA 316; (2000) 170 ALR 439.
[79] Ibid, at 472.
[80] See Forsyth M, ‘Biotechnology, Patents and Public Policy: A Proposal for Reform in Australia’ (2000) 11 AIPJ 202.
[81] Ibid, at 212.
[82] See below.
[83] Samuelson et al, above n13 at 2330-2331.
[84] O’Reilly T, ‘An Open Letter to Jeff Bezos’ O’Reilly Network, 28 February, 2000:
http://www.oreilly.com/cgi-bin/amazon_patent.comments.pl
(12 January 2005). This letter encapsulates many of the objections to the patent and became a petition which stopped accepting signatures after the number of signatories reached 10,000.
[85] Barton-Davis P, ‘I Oppose Amazon.com’s 1-Click Patent’:
http://www.equalarea.com/paul/amazon-1click.html
(12 January 2005).
[86] Discussed below.
[87] See NRDC, above n 6 at 261-262.
[88] See Fisher, above n 9 at 18.
[89] Loughlan, above n 54 at 571.
[90] Amazon obtained a preliminary injunction against Barnes & Noble which forced the latter to add another click to their ‘Express Lane’ ordering system. See Amazon.com Inc v BarnesAndNoble.com Inc 73 F Supp 2d 1228 (US District 1999).
[91] Bessen, above n 55 at 3-4.
[92] Ibid, at 4, 5.
[93] These are defined as follows: ‘An application programming interface (API) is a set of definitions of the ways in which one piece of computer software communicates with another. It is a method of achieving abstraction, usually (but not necessarily) between lower-level and higher-level software’. See Wikipedia, ‘Application Programming Interface’
http://en.wikipedia.org/wiki/Application_Programming_Interface (12 January 2005).
[94] See Cohen J, ‘Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of ‘Lock-Out’ Technologies’ (1995) 68 California Law Review 1091 at 1178. Cited in Burk & Lemley, above n75 at 17.
[95] See Bicknell C, ‘Cashing in on Bogus Patents’ Wired News, 19 October, 2000:
http://www.wired.com/news/business/0,1367,39528-2,00.html
(12 January 2005).
[97] Microsoft’s strategy of only making Word available within the Microsoft Office bundle has ensured that the other bundled products, Excel and Powerpoint, are de facto standards in their markets.
[98] For a discussion of the reasons why, see Lessig L, ‘The Architecture of Innovation’ (2002) 51 Duke Law Journal 1783 at 1789.
[99] Technically, use of the product would fall within the scope of the patent holder’s right to exploit the invention. It is assumed however that a patent holder is unlikely to sue its own customers.
[100] For a detailed analysis of the status of reverse engineering in the US, see Weiser PJ, ‘The Internet, Innovation and Intellectual Property Policy’ (2003) 103 Columbia Law Review 534 at 552-568. In support of a copyright-like fair use defence for patent law, see O’Rourke MA, ‘Toward a Doctrine of Fair Use in Patent Law’ (2000) 100 Columbia Law Review 1177.
[101] S47D.
[102] See the discussion of the Linux project below, which was found to potentially infringe 283 patents.
[103] This point was originally put forward by Mandeville et al in relation to patents generally, although it can no longer be considered a statement of general authority. (For empirical evidence that this is no longer the case in the biotech industry see Nicol D and Nielsen J, Patents and Medical Biotechnology: An Empirical Analysis of Issues Facing the Australian Industry (2003) Centre for Law and Genetics Occasional Paper No. 6). Stallman and Kahin have recently echoed Mandeville’s claim in relation to the software industry. See Mandeville, T D, Lamberton, D M, Bishop, E J, Economic Effects of the Australian Patent System (1982) Australian Government Publishing Service, Canberra at 213. Cited in Loughlan, above n54. See also Stallman R, ‘The Danger of Software Patents’ 2004 Cyberspace Law and Policy Seminar (audio recording), Sydney, 14 October 2004:
http://images.indymedia.org/imc/sydney/stallman%20lo.ogg
(11 November 2004); Kahin B, ‘Why Europe should be wary of software patents’ (2003) Managing Intellectual Property:
http://www.si.umich.edu/~kahin/mip.html
(13 January 2005).
[104] 35 USC § 284. For an overview of the decisions on wilful infringement, see Olexy PD, ‘Avoiding Willful Infringement And Increased Damages: An Overview of Selected Decisions’:
http://www.sughrue.com/clientfiles/aviod_wi(4).htm
(13 January 2005).
[105] Section 123(1) Patents Act 1990 (Cth).
[106] In relation to patent searching practices in the biotechnology industry see Nicol D and Nielsen J, ‘Results Chapter 5: Anticommons Issues’ in Patents and Medical Biotechnology, above n103.
[107] This is the well-documented ‘anticommons’ effect. See O’Rourke, above n100, at 1179.
[108] Carroll J, ‘Software patents need shelter from the storm’ ZDNet UK, 17 September, 2003:
http://comment.zdnet.co.uk/other/0,39020682,39116437,00.htm
(5 January 2005).
[109] Ibid.
[110] See Samuelson et al, above n 13 at 2377.
[111] For an overview see Wikipedia, ‘Moore’s Law’
http://en.wikipedia.org/wiki/Moore%27s_law
(14 January 2005). For a more in-depth analysis, see Tuomi I, ‘The Lives and Death of Moore’s Law’ (2002) 7(11) FirstMonday:
http://www.firstmonday.dk/issues/issue7_11/tuomi/
(14th January 2005)
[112] See ‘There is no Moore’s Law for Software’:
http://www.geniebusters.org/15_Mooreslaw.htm
(14th January 2005).
[113] See for example Bezos J, ‘An Open Letter from Jeff Bezos on the Subject of Patents’ O’Reilly Network, 3 September, 2000:
http://www.oreilly.com/news/amazon_patents.html
(18 January 2005).
[114] The British Telecom Sargent patent, discussed below, is a classic example of this sort of opportunistic enforcement of a dinosaur patent.
[115] Open Source Initiative, ‘The Open Source Definition’
http://www.opensource.org/docs/definition.php
(14 January 2005).
[116] Barr J, ‘Live and let license’ Linuxworld.com, 23 May, 2001:
http://www.itworld.com/AppDev/350/LWD010523vcontrol4/
(14 January 2005).
[117] Version (or revision) control systems record the history changes to files such as source code and project documentation. See Wikipedia, ‘Version Control’
http://en.wikipedia.org/wiki/Version_control
(14 January 2005) for more information and examples of common version control software.
[118] Bug trackers are used to manage the reporting and resolution of errors in computer software. See for example:
[119] Mailing lists are a system which allow for widespread distribution of email to many Internet users. Typical OSS projects archive mailing list discussions in web-searchable format. See for example:
http://mailman.sourceforge.net
[120] A web application that allows for online discussion. See Wikipedia, ‘Forums’:
http://en.wikipedia.org/wiki/Forums
(12 January 2005) for more information.
[121] A weblog (or blog) is an online journal or diary. Software developers on OSS projects often document their work through this medium. Blogs of individuals are sometimes aggregated together to form a ‘blog planet’. For an example relating to the Mozilla project, see:
[122] Bessen J, ‘Open Source Software: Free Provision of Complex Public Goods’
http://www.researchoninnovation.org/opensrc.pdf
(11 November 2004) at 21.
[123] David Wheeler has combined many such sources together into one document which also includes some discussion of non-quantitative measures. See Wheeler D, ‘Why Open Source Software/Free Software? Look at the Numbers!’ 7 November 2004:
http://www.dwheeler.com/oss_fs_why.html
(14 January 2005).
[124] This browser war formed the basis of the high-profile antitrust suit against Microsoft by the US Department of Justice. See United States Department of Justice, ‘United States v. Microsoft: Current Case’:
http://www.usdoj.gov/atr/cases/ms_index.htm
(14 January 2005) for information relating to the case.
[125] Hamm S, ‘Mozilla is Gaining on Godzilla’ BusinessWeek Online, 12 January, 2005:
http://www.businessweek.com/technology/content/jan2005/tc20050112_0827_tc119.htm
(14 January 2005).
[126] Part of the appeal of Firefox has been the new features it offers to users such as tabbed browsing and popup ad blocking. See:
http://www.mozilla.org/products/firefox
[127] Lessig, above n 98 at 1789.
[128] Ibid, at 1788-1790.
[129] Such is the nature of the Internet where open protocols run on proprietary hardware, see Lessig, above n 98 at 1790.
[130] See Bessen J, above n 122 for an economics-heavy proof of this proposition.
[131] The author bases this proposition on his personal experience with the Zope project community (http://zope.org/). Empirical evidence gathered in relation to Embedded Linux also supports this view, with 139 of 259 survey participants working for organisations with less than 50 people, and 81 participants working for companies with 200 or more staff. See Henkel J and Tins M, ‘Munich/MIT Survey: Development of Embedded Linux’ Institute for Innovation Research, Technology Management and Entrepreneurship, University of Munich, 10 May 2004
http://opensource.mit.edu/papers/henkeltins.pdf
(20 January 2005) at 7.
[132] Roberts R, ‘Why Linux is Wealthier than Microsoft’ BusinessWeek Online, 19 November, 2003
http://yahoo.businessweek.com/technology/content/nov2003/tc20031119_9737.htm
(18 January 2005).
[133] Code forking is a consequence of the liberal modification and redistribution rights given in OSS licences. If any one party is unhappy with the direction a project is taking, they can take a copy of the source code and use it to launch their own project. See Wikipedia, ‘Code Forking’
http://en.wikipedia.org/wiki/Code_forking
(18 January 2005).
[134] For example, Linus Torvalds is the project leader for the Linux kernel project.
[135] For example the Apache Software Foundation (see <http://apache. org> ) or the Mozilla Foundation (see <http://mozilla.org/> ) host the project website, version control and mailing lists which allow project collaboration in addition to holding IP rights in the project code.
[136] On the legal implications of distributed versus centralised control see Metro-Goldwyn-Mayer Studios, Inc v Grokster, Ltd US District Court Central District of California (25 April 2003).
[137] Williams P, ‘Patent threat to open source is limited’ vnunet.com 8 September, 2004:
http://www.pcw.co.uk/news/1157906
(5 January 2005). On the other hand, the Recording Industry Association of America in the US are certainly having a good shot at pursuing similarly distributed filesharers with copyright infringement suits. See Jaques R, ‘RIAA Launches P2P file sharing legal blitz’ vnunet.com 19 November 2004
http://www.vnunet.com/news/1159534
(20 January 2005).
[138] See for example Babcock C and Greenemeier L, ‘Open Source Stress’ Information Week, 9 August, 2004
http://www.informationweek.com/story/showArticle.jhtml?articleID=26806464
(3 January 2005). Also see Section 5.2 below.
[139] Ravicher D, ‘Position Paper: Mitigating Linux Patent Risk’ Open Source Risk Management 2 August, 2004
http://www.osriskmanagement.com/pdf_articles/linuxpatentpaper.pdf
(3 January 2005) at 1.
[140] This is what people mistakenly refer to as the Linux operating system, which Stallman insists is more correctly called GNU/Linux. See Stallman, above n 97.
[141] Ibid.
[142] For example, the preamble to the GNU General Public Licence has for a decade recognised that “any free program is threatened constantly by software patents”. See Free Software Foundation, ‘GNU General Public License’ 16 February 1998:
http://www.gnu.org/copyleft/gpl.html
(3 January 2005)
[143] See Open Source Initiative, ‘Halloween Document II (Version 1.4)’:
http://www.opensource.org/halloween/halloween2.php
(14 January 2005)
[144] Barr J, ‘HP memo forecasts MS patent attacks on free software’ Newsforge, 19 July, 2004
http://www.newsforge.com/article.pl?sid=04/07/19/2315200
(14 January 2005).
[145] Bangeman E, ‘Will Microsoft sue OpenOffice users?’ ArsTechnica, 16 September, 2004
http://arstechnica.com/news.ars/post/20040916-4192.html
(14 January 2005). OpenOffice.org is a free alternative to Microsoft Office.
[146] In 1999, IBM collected $1.3 billion from licensing, with 40% of that believed to have come from patent licensing. See LPS Group, ‘Market Trends’:
http://www.informationholdings.com/lps/market.html
(18 January 2005).
[147] Cited in Irlam G and Williams R, ‘Software Patents: An Industry at Risk’ Submission to the Patent and Trademark Office on Patent Protection for Software-Related Inventions:
http://lpf.ai.mit.edu/Patents/industry-at-risk.html
(5 January 2005).
[148] Gates W, ‘Challenges and Strategy’:
http://www.bralyn.net/etext/literature/bill.gates/challenges-strategy.txt
(10 March 2005).
[150] Fisher undertakes a comparison of the impact of the patent system on four different industries, and concludes that patents work well in the pharmaceutical industry. See Fisher, above n 9.
[152] Ibid, at 6.14.
[153] Burk & Lemley, above n 75 at 48.
[154] Ibid, at 23-35. In Australia, the same trend has emerged for non-obviousness, but not for disclosure. This may be attributable to either the much smaller number of Australian cases on the matter, or the generally more liberal standards adopted in the Australian jurisdiction. On the obviousness standard in Australia, see Nicol & Nielsen, above n103 at 365-369.
[155] Burk & Lemley, above n 75 at 48.
[156] Ibid, 7-22.
[157] Ibid, at 52-54.
[158] Ibid, at 54-56.
[159] Ibid, at 56-58.
[160] Ibid, at 58-59.
[161] Ibid, at 6.15.
[162] Loughlan, above n 54 at 577.
[163] Where the prevention of commercial exploitation is necessary to protect ‘ordre public’ or morality, or to avoid serious prejudice to the environment. See Articles 27(2) and (3); Christie & Syme, above n 47 at 544-545.
[164] This interpretation was taken by many submissions to ALRC gene patent Inquiry see above n 76 at Ch 6, fn14.
[165] Christie and Syme, above n 47 at 544-545.
[166] Collins Australian Dictionary and Thesaurus, 3rd Edition, HarperCollins, 2004.
[167] ALRC, above n 76 at 6.18.
[168] McKeough J, Stewart A and Griffith P, Intellectual Property in Australia, 3rd ed, LexisNexis Butterworths, Sydney, 2004 at 269.
[170] Torvalds L & Cox A, ‘Open Letter on Software Patents from Linux Developers’ 21 September, 2003:
http://www.effi.org/patentit/patents_torvalds_cox.html
(15 January 2005).
[171] O’Reilly T, ‘The Internet Patent Land Grab’ O’Reilly Network:
http://tim.oreilly.com/patents/cacm3.html
(11 November 2004).
[172] Perens B, ‘Software Patents vs. Free Software’
http://perens.com/Articles/Patents.html
(15 January 2005).
[173] In fact, the League for Programming Freedom have been arguing for their abolition since at least 1991. See League for Programming Freedom, ‘Against Software Patents’ 28 February 1991:
http://lpf.ai.mit.edu/Patents/against-software-patents.html
(11 November 2004).
[174] This is one of the grounds for exclusion under the Statute of Monopolies 1623 on which our manner of manufacture test relies. See Christie & Syme, above n 47 at 543-544.
[175] Ibid, at 545.
[176] The Freeman-Walter-Abele test was introduced after a 1985 review of the Patent Office Guidelines.
[177] Cohen & Lemley, above n 8 at 4.
[178] At the time of writing, the European Council has passed the Directive, despite requests from a number of member nations not to do so. See Marson I, ‘Software patent directive adopted’ ZDNet UK, 8 March 2003:
http://news.zdnet.co.uk/0,39020330,39190497,00.htm
(8 March 2005)
[179] Miller R, ‘US to EU on Software Patents: ‘We sold out, you should too’’ Newsforge, 9 June, 2004
http://trends.newsforge.com/trends/04/06/09/1447245.shtml
(5 January 2005).
[180] Ibid.
[181] Samuelson et al, above n 13 at 2310.
[182] Ibid.
[183] Ibid, 2415-2419.
[184] Semiconductor Chip Protection Act 1984 US. This legislation formed the basis of the WIPO draft of the 1989 Washington Treaty for which the Australian legislation was passed. Circuit Layout protection is now required by Articles 35-38 of TRIPS. See Copyright Law Review Committee, ‘Chapter 8: Circuit Layouts’ in Copyright and Contract 23 August 2004:
http://sgeag001web.ag.gov.au/agd/www/Clrhome.nsf/0/937143BFE876FAD2CA256C4F000F065F?OpenDocument
(19 January 2005) at 8.03-8.04.
[185] McKeough, above n 168 at 268.
[186] Reichman has elsewhere observed that many of the major problems facing the patent system are due to a failure to protect these small grain-sized innovations. See Reichman J, above n 8.
[187] Samuelson, above n 13 at 2417-2418.
[188] Reichman, above n 12. In fact, some are likely to be better off.
[189] BT’s Sargent Patent (US patent 4,873,662) was filed in 1977 but not awarded until 1989. BT claimed the patent covered the use of hyperlinking and in 2000 began enforcement proceedings against Prodigy. Summary judgement was awarded to Prodigy in 2002. The case brought harsh criticism from the US software industry. British Telecommunications PLC v Prodigy Communications Corporation (2002) 217 F Supp 2d 399; US Dist LEXIS 15521 (22 August 2002). For a good overview of the case see Sauer G, ‘BT’s ‘Hyperlinking’ Patent Litigation Fails’ (2003) 51 NSW Society for Computers and the Law Journal:
http://www.nswscl.org.au/journal/51/Glen_Sauer.html
(18 January 2005).
[190] The Eolas patent (US patent 5,838,906) covers a method for embedding and invoking interactive applications in Web browsers. Eolas was awarded US$521 million in an infringement suit against Microsoft over their ActiveX technology. The public outcry in the wake of this judgement led to a re-examination in which the patent was found invalid on the basis of submitted prior art. The Eolas-Microsoft litigation is ongoing. See Hicks M, ‘Eolas Patent Invalid’ eWeek, 5 March, 2004:
http://www.eweek.com/article2/0,4149,1543839,00.asp
(18 January 2005).
[191] See Burke TP, ‘Software Patent Protection: Debugging the Current System’ (1994) 69 Notre Dame Law Review 1115, 1158-1160: ‘In fostering the trade-off between the interests of inventors and the public, the source code is the best way to explain the algorithm.’ Cited in Burke & Lemley, above n 75, footnote 45 at 13-14.
[192] Toedt DC, ‘Patents for Inventions Utilizing Computer Software: Some Personal Pointers’ (1992) 9(10) Computer Law 12. Cited in Burk & Lemley, above n 69, footnote 45 at 13.
[193] A party wishing to exploit the patented invention may apply under s.133(1) Patents Act 1990 (Cth) to the court for an order requiring the patentee to grant a licence.
[195] See O’Rourke, above n 100.
[196] Cohen & Lemley, above n 8.
[197] Ibid, at 28.
[198] Unknown speaker in Stallman, above n 103.
[199] Ibid.
[200] For an overview of the nature of the claims and the current state of litigation, see:
[201] Taken from the company’s website:
(5 January 2005)
[203] Lohr S, ‘I.B.M. to Give Free Access to 500 Patents’ New York Times, 11 January, 2005
http://www.nytimes.com/2005/01/11/technology/11soft.html
(12 January 2005).
[204] See for example, Novell Corporation, ‘Novell Statement on Patents and Open Source Software’:
http://www.novell.com/company/policies/patent/
(5 January 2005).
[206] See <http://pubpat.org/> (18 January 2005).
[207] Public Patent Foundation, ‘At PubPat’s Request, Patent Office Rejects Microsoft’s FAT Patent’ 30 September, 2004:
http://pubpat.org/Microsoft_517_Rejected.htm
(19 January 2004).