The UK Court of Appeal has apparently broadened the scope to patent computer software:
Symbian Limited v. Comptroller General of Patents [2008] EWCA Civ 1066
Paul Cole guest posts at Patently-O. IPKat extensively here.
Patenting software in the UK (Europe) Read More »
Metro Public Transport (Melbourne, Sydney and Perth) a free and paid version for Melbourne
Pocket Weather AU (like the great widget, but you have to pay)
Another 5 another lawyer likes.
The three I mention can be (are) Australian specific information services. These work well because they relate to location specific things which the iPhone can retrieve. Most of the other apps I find useful really need to sync with my computer; first, because it’s easier to enter the data on the computer and, secondly, because you don’t want to be entering things twice or three times or ….
Unfortunately, the way the iPhone is designed to work means that most of these apps – sugarsync, Evernote etc. – work “in the cloud” (Our ABC here). They must be stored on the internet or pass through an internet host. That has potential security and privacy concerns (assuming the technology works).
That feeds into a different concern raised by Jonathan Zittrain in The Future of the Internet and How to Stop it. We are being present with a range of proprietary offerings that are acting a bit like gated communities in which you only get what the provider is willing to offer. Prof. Zittrain contrasts that to his view of the way the Web has worked till now: someone provided the underlying technology and hosts of people came along with hosts of customised solutions that you could choose to use.
Android? Well, it seems potentially to be much more open than the iPhone. Hopefully, it will force a lot more open-ness through competition but, of course, Google has its own “cloud”.
3 helpful iPhone apps for Australians Read More »
The Government has released the Report On The Review Of The National Innovation System.
You can download copies of the Report, an Overview, the 3 different press releases, the Minister’s introductory remarks and the Minister’s speech from here. I wonder if the prospects of implementation are increased or decreased by the quantity of media assistance?
As the Report points out, “we have known for several generations that innovation pre-eminently determines our prosperity.”
And yet:
as a share of Gross Domestic Product (GDP), Australian Government support for science and innovation, has fallen by nearly a quarter. Also the number of researchers per 1,000 employees has declined substantially in the last decade, and US patents granted per 1,000 population have plunged from 0.06 to 0.01 (1999–2003). And yet during this time, the public revenue was fed by a torrent of cash from the mineral boom.
There are 201 pages, plus 7 annexes. There are 15 pages of recommendations.
Interestingly, there is also a software analysis of the main themes identified in submissions and, very usefully, the Departmental summary of the submissions.
Comments can be submitted to the Ministry until (at least) 23 September 2008. Well, it is almost 2 weeks!
Australian Innovation Review Read More »
A rare and interesting decision on the scope of (mainframe) computer software licences and s 47C (computer program back-ups) and s 47F (security testing) of the Copyright Act:
RWWA (which runs the West Australian TAB). SAG granted it a non-transferable, non-exclusive licence to run the ADABAS database management software on its mainframe computer. This was the software used for its its betting business.
In addition to installing the software on its mainframe computer, RWWA arranged with KAZ to use KAZ’ mainframe for a ‘warm’ disaster recovery site: RWWA stored a mirror-image disk copy on KAZ’s mainframe computer. Although a copy was stored on KAZ’s mainframe, it was not loaded into ‘memory’ except when being used in an actual disaster recovery situation or routine testing to ensure the back-up would work. Prior to this, RWWA had used back-up tapes stored off-site.
In a 268 paragraph decision, McKerracher J has held that RWWA did not breach of its licence by doing this and, in any event, was protected from copyright infringement by ss 47C and s 47F of the Copyright Act.
The main issues were whether or not RWWA’s off-site storage and testing of the back-up and/or the involvement of KAZ entitled SAG to claim additional licence or maintenance fees (up to several hundred thousand dollars per annum). In broad summary, SAG contended that
(1) storage and, in particular, the testing of the back-up was in breach of cl. 12.3 and required further maintenance fees or
(2) the involvement of KAZ was in breach of cl. 1.5 which prohibited ‘outsourcing’.
Cl. 1.5 provided:
1.5 The Licensee shall not assign, sub-licence, sell, lease, encumber, charge or otherwise in any manner attempt to transfer this Licence or any of its rights or obligations hereunder. The Licensee may not allow any third party to operate the System(s) on its behalf as part of any outsourcing, facilities management, application service provision or similar type of arrangement.
Clause 12.3 provided
12.3 Software AG hereby expressly authorises the Licensee to copy the System(s) (in object code only) and the Documentation for archival or emergency restart purposes PROVIDED THAT no more than (3) copies made by the Licensee of the then current system version shall exist at any time and all old versions shall be destroyed.
In rejecting SAG’s claims that cl. 12.3 did not protect RWWA, McKerracher J found:
186 Clause 12.3 is intended to be permissive. Objectively viewed, its purpose is to permit the licensee to reproduce the software to the extent that may be required for emergency restart purposes. To merely copy the distribution tapes or cartridges would be of limited practical use for that purpose. This is common ground amongst all experts. To construe cl 12.3 as being confined simply to copying tapes or cartridges of the unconfigured and uninstalled System would be a construction that is at least unreasonable and inconvenient but would also be unjust.
187 It is common ground that the System as supplied does include some source code. When the source code is converted to object code and is then linked to create load modules on installation of the System, the System as installed and configured then becomes a copy ‘in object code only’ and there is a copying of the System for emergency restart purposes.
and
203 As there is no technical meaning, the question is one of construction of the Licence Agreement. In my view the only sensible construction is that when the Licence Agreement refers to ‘use’ it means using the System within RWWA’s ordinary business or some other business, not for occasional testing for one DR Site. This must be so, in my view, if the DR Copy at the DR Site is authorised by cl 12.3 as I conclude that it is.
205 If the use by RWWA of the DR Site is authorised by cl 12.3, then the question as to whether or not the System is otherwise in use (for cl 1.1(d)), in my view, falls away. I consider that the use is so authorised.
Further, the copy was made for the purposes of emergency restart:
209 In a business which has an extremely high turnover of transactions and a substantial financial turnover, each day of delay is significant. In my view there is no scope for the argument that emergency restart simply means that the business has sustained a disaster or emergency which will require a restart at some leisurely pace in a week or so. In my opinion the whole concept of emergency restart means that as an essential part of a highly sophisticated business environment, the restart is required as quickly as reasonably possible.
Taking into account similar considerations, his Honor found that ss 47C and 47F would also operate to protect RWWA.
Nor was there any ‘outsourcing’ in breach of cl. 1.5:
249 Mr Fink who has had very extensive experience in the mainframe industry rejects the suggestion that the arrangement or contract between KAZ and RWWA is one which constitutes outsourcing in any sense. Rather, as a matter of practice and in accordance with the nature of the arrangement between KAZ and RWWA by its contractual documents, what KAZ provides to RWWA is an environment for the equipment on which the DR Copy will be loaded should an emergency occur. RWWA retains responsibility for the DR process. There is no evidentiary basis for suggesting that KAZ is in any way involved in operating the System. Without that evidence which, had it been available, may have been the closest there was to any ‘outsourcing’, none of the other suggested actions could constitute ‘outsourcing’ as it is used in the Licence Agreement.
Racing & Wagering Western Australia v Software AG (Australia) Pty Ltd [2008] FCA 1332 (29 August 2008)
A case on computer software licences and back ups in Australia Read More »
Joshua Gans says he has been teaching this case study to his MBA students …
Flash of Genius.
On a similar theme, IPRoo attended the launch of Measured Success, Innovation Management in Australia and found an IP lawyer’s vision of nirvana:
“Adrian Hunter went beyond the usual practice of inviting patent attorneys to attend the first meeting of the project. He invited them to attend all of the quarterly meetings for the five-year duration of the project….
In addition to allowing the patent attorneys to think about their patent strategy very early on in the process, this experiment facilitated two fundamentally important information transfers of tacit knowledge, one from the patent attorneys to the scientists, and the other from the scientists to the patent attorneys…
The scientists started to understand, at a much deeper level, the notion of a patent as a strategic weapon…the patent attorneys learned what it was that the scientists had actually created…The consequences of these information transfers were quite dramatic…”
Perhaps you should send a copy to your clients in case they go to see Flash of Genius?
Innovators and entrepreneurs Read More »
