The Commercialisation of Software: Patenting vs Open Source
Speaker: Alistar Smith, Davies Collison Cave
When: 2007-08-14 10:00:00
Venue: 78-420
Host: Cristina Cifuentes
Abstract:It is important to understand that there are a number of different
protection mechanisms available for software, and that these can be
used to provide leverage for commercialisation. However, as there
are also a number of potential pitfalls it is important to
understand the extent to which software may be protected.
Copyright is automatically provided for literary works, including
software in the form of source, object or executable code. Whilst
copyright protection is automatic, it is restricted to the actual
copying of a particular piece of code and consequently does not
protect against either independent creation of an identical work, or
implementation of a similar concept utilising different code.
In contrast to this, Patents provide monopolistic rights for
concepts satisfying certain requirements. Protection is granted on a
jurisdictional basis, so it is necessary to obtain protection in
each country of commercial interest. However, in contrast to
copyright, Patents can operate to protect the underlying concept
behind software applications, irrespective of its implementation.
Patentability is governed by statute, which is in turn interpreted
in view of case law, and this has led to each country having
slightly different requirements regarding Patentability, and how
Patent applications are assessed.
In the US, there are virtually no restrictions on the Patentability
of a concept as long as it provides a useful concrete and tangible
result.
In Australia, whilst restrictions exist, in practice, these are very
narrow and generally do not limit the extent to which software can
be protected by way of Patents.
In contrast to the US and Australia, Europe has specific exclusions
meaning that software "as such" is not Patentable. Whilst this
exclusion is also narrowly applied, recent developments in case law
have resulted in the requirement that the invention provide a
technical contribution over the previous art. It is also worthy of
note that the Patentability of software has become a "hot" political
topic in Europe, and the rules regarding Patentability may well
change in the years to come.
To highlight these issues, some example of software Patents in the
different jurisdictions will be discussed, including pivotal cases
such as the recent "Hitachi" decision, which has had a significant
impact on the approach to Patentability of software in Europe.
Another mechanism for developers is to make software available as
"Open Source" software, for example by distributing the software
under a General Public Licence (GPL). This limits the degree to
which developers can control the dissemination of their code, and
accordingly open source does not provide the market monopoly
conferred by Patents protection.
Despite this there are still a number of mechanisms available that
allow developers to capitalise on their products. Such commercial
models typically involve not only selling code, but also selling
distribution and branding rights, providing open source code as a
loss leader, and selling the code together with related goods such
as hardware. In addition to this, the developers can benefit from
developments made by third parties.
To highlight the differences in approach a number of examples of how
companies have implemented successful commercial models, such as
Forgent Networks, and Red Hat, will be discussed.
It will also be highlighted that even if an open source commercial
model is to be followed, companies cannot completely ignore third
party Patent rights, which may in turn restrict their ability to
provide open source software.
To conclude, some of the reasons surrounding why such problems exist
in the software environment will be outlined, together with a brief
discussion of the likely impact of future developments in the
software industry.
Biography:Alistair Smith is an associate in Davies Collison Cave's information
technology and communications patent practice. He specialises in
patent, design and copyright advice relating to computer software,
business methods and electronic devices, including their application
to the medical and biotechnology areas.
Alistair's technical expertise encompasses areas such as MRI, heart
pumps, drug delivery mechanisms, monitoring devices and software, as
well as data analysis in the bioinformatics areas.
His professional activities include drafting and prosecuting patent
applications, as well as providing strategy advice to start-up
companies. Alistair also regularly presents seminars advising on
issues surrounding patentability.
Prior to joining Davies Collison Cave in 2001 he worked for a patent
attorney firm in London where he qualified as a European and UK
Patent Attorney. Consequently, Alistair has significant experience
in overseas jurisdictions and the requirements particular to
obtaining Patent protection in these countries.
Alistair is a Fellow of the Institute of Patent and Trade Mark
Attorneys (IPTA), the Intellectual Property Society of Australia and
New Zealand (IPSANZ), and an overseas member of both The Chartered
Institute of Patents Agents and the Institute of Professional
representatives before the European Patent Office.
Alistair is also a member of the New South Wales Medical Device
Network committee, as well as being a qualified Australian and New
Zealand Patent Attorney, UK Chartered Patent Agent and a European
Patent Attorney. He has a Master of Arts in Natural Sciences from
Magdalene College, Cambridge University, where he specialised in
Physics.
Type: ITEE Seminar
Contact:Cristina Cifuentes, seminar host (Cristina.Cifuentes@sun.com)
or Guido Governatori (ITEE seminar co-ordinator)
(guido@itee.uq.edu.au)