Cyberspace Law and Policy Centre, University of New South Wales
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Wednesday, September 10, 2008


Software patents in the Review of the National Innovation System

The Review of the National Innovation System came out yesterday, commissioned by the Department of of Innovation, Industry, Science and Research. See all the details, including the full report, at

I'm currently preparing a paper on the Open Source software developer's perspective on software patents (with a friend of mine, Owen Jones, who has the real expertise in patents), and so naturally I was interested in what the expert panel had to say about software patents. I have to admit I haven't thoroughly worked through it yet, but here is a paragraph that I think is very interesting, from the initial overview chapter:
"Intellectual property is also critical to the creation and successful use of new knowledge – particularly the 'cumulative' use of knowledge as an input to further, better knowledge. In this regard, particularly in new areas of patenting such as software and business methods, there is strong evidence that existing intellectual property arrangements are hampering innovation. To address this, the central design aspects of all intellectual property needs to be managed as an aspect of economic policy. Arguably, the current threshold of inventiveness for existing patents is also too low. The inventive steps required to qualify for patents should be considerable, and the resulting patents must be well defined, so as to minimise litigation and maximise the scope for subsequent innovators." (page xii)
I think this is a great admission. First, it recognises that we need to ensure that our current innovations can contribute effectively to future innovations. Then it acknowledges that patents are granted too easily, and specifically mentions software patents as an area where more harm is being done than good.

Maybe I'm reading a little too much into it. Or maybe I'm just reading between the lines.

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Thursday, October 04, 2007


Quick question

Hello friendly readers. I just got this completely random e-mail from someone in Helsinki, I think, completely out of the blue:
I'm working on human embryonic stem cell research and patenting of those in Australia but from overseas. I was wondering whether you are aware of any Australian IP (that would cover patents) or patent blogs maybe.
I don't know of any such blogs, but I have to admit to not paying as much attention to the world of patents as I do of copyright. But for the sake of being helpful I decided to ask around. So if anyone has any good Australian patent law related web resources, drop a comment on this post and I'll pass it on.

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Tuesday, August 14, 2007


Facebook sued for patent infringement -- TechnoLlama

I was going to comment on this TechnoLlama post, but then I thought, "why not just blog about it?"

Now, before I go any further, let me reiterate, I am not a lawyer, I have no formal background in law, and the Unlocking IP project is not even particularly about patents.

Get to the point, Ben.

Okay, okay. My point is this, and please correct me if I am wrong (that's why I'm making this a whole post, so you can correct me in the comments): as I understand it, the abstract of a patent does not say what the invention is, but rather it describes the invention. I.e. the abstract is more general that the invention.

For example, say I had a patent for... *looks around for a neat invention within reach*... my discgear. Well the abstract might say something like
A device for storing discs, with a selector mechanism and an opening mechanism such that when the opening mechanism is invoked, the disc selected by the selector mechanism is presented.

But then the actual patent might talk about how:
So that's what I've patented. The abstract I gave just describes it. You can invent something else that fits that description, but as long as it's not sufficiently similar to my invention as described in detail, it's not patent infringement.

To go back to the original example, an old vinyl disc jukebox (see the third image on this page) would satisfy the description in my abstract, but not infringe my patent.

In summary, I'm not alarmed by the generality of the abstract in the Facebook case. But if it turns out I'm wrong, and abstract are not more general than the patents they describe, let me just say I will be deeply disturbed.

You have no idea what you're talking about

I thought I made that clear earlier, but yes that's true. Please correct me, or clarify what I've said, by comment (preferred), or e-mail (in case it's the kind of abuse you don't want on the public record).

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