australia

that it exemplified "a progressive tendency to forget all of the belief except the formularies, or to give it a dull and torpid assent, as if accepting it on trust dispensed with the necessity of realising it in consciousness, or testing it by personal experience".

1. Applications per year for patents, trade marks, designs, plant breeder rights
2. Patents granted in Australia to Australians (9%) and the top 5 tech groups of these (IT ranked in the Top 5).
   
3. Similar stats for Innovation patents.
4. Patents granted to Australians by the USPTO. Australia ranked 12th in 2005, with an increase of 30% in the number of patent applications over the previous year. Again, IT was in the top 5 technology groups.
5. The number of patents granted to Australians by the EPO was up only 1.7%, with Australia ranking 17th in non-EU countries for patent applications. IT was not one of the top 5 groups, unsurprisingly ;)

"The peace and order of Australian society
is built on the legal system. It can be modified to bring it into conformity
with contemporary notions of justice and human rights, but it cannot be
destroyed. It is not possible, a priori, to distinguish between cases that
express a skeletal principle and those which do not, but no case can command
unquestioning adherence if the rule it expresses seriously offends the values
of justice and human rights (especially equality before the law) which are
aspirations of the contemporary Australian legal system. If a postulated rule
of the common law expressed in earlier cases seriously offends those
contemporary values, the question arises whether the rule should be maintained
and applied. Whenever such a question arises, it is necessary to assess
whether the particular rule is an essential doctrine of our legal system and
whether, if the rule were to be overturned, the disturbance to be apprehended
would be disproportionate to the benefit flowing from the overturning."

At [39]:

"The theory that the indigenous inhabitants of a "settled"
colony had no proprietary interest in the land thus depended on a
discriminatory denigration of indigenous inhabitants, their social
organization and customs. As the basis of the theory is false in fact and
unacceptable in our society, there is a choice of legal principle to be made
in the present case. This Court can either apply the existing authorities and
proceed to inquire whether the Meriam people are higher "in the scale of
social organization" than the Australian Aborigines whose claims were "utterly
disregarded" by the existing authorities or the Court can overrule the
existing authorities, discarding the distinction between inhabited colonies
that were terra nullius and those which were not."

At [42]:

"Whatever the justification advanced in earlier days for refusing to recognize
the rights and interests in land of the indigenous inhabitants of settled
colonies, an unjust and discriminatory doctrine of that kind can no longer be
accepted. The expectations of the international community accord in this
respect with the contemporary values of the Australian people. The opening up
of international remedies to individuals pursuant to Australia's accession to
the Optional Protocol to the International Covenant on Civil and Political
Rights (68) See Communication 78/1980 in Selected Decisions of the Human
Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on
the common law the powerful influence of the Covenant and the international
standards it imports. The common law does not necessarily conform with
international law, but international law is a legitimate and important
influence on the development of the common law, especially when international
law declares the existence of universal human rights. A common law doctrine
founded on unjust discrimination in the enjoyment of civil and political
rights demands reconsideration."

[i]n many proceedings, especially in recent years, [the High Court] has granted leave to governmental and non-governmental organisations to make submissions as amici curiae where their interests have suggested a capacity to provide submissions from a specialised viewpoint, an industry perspective or in the public interest.

Here's a summary taken from http://www.tomw.net.au/blog/2006/04/making-australian-software-industry.html

CIIER estimates that in 2004–05, the Australian software product industry employed around 17 000 staff, supported by nearly 7000 development staff, and earned AUD 2.7 billion, of which $830 million went to Australian developers. International markets accounted for $290 million of this revenue, with $226 million going back to the software developers. The industry spends $66 million a year on R&D.

The computer software and services industry includes a large number of small firms. In June 2003, no less than 97% had fewer than 20 employees and 99.6% had fewer than 100. Nevertheless, a relatively small number of larger firms dominate most markets, of which the majority are foreign based multinationals though there are a few relatively large indigenous software firms.

Citation

Jurisdiction

Facts

Outcome

Ratio

• Patentee was not confined to the particular mode of use of the method patent described in the specifications, since the claims of the patent, not its specifications, measure the invention.

Relevance

Quotes

At 11: "We may take it that, as the statute requires, the specifications just detailed show a way of using the inventor's method, and that he conceived that particular way described was the best one. But he is not confined to that particular mode of use, since the claims of the patent, not its specifications, measure the invention."

This is not to be confused with the requirement of an inventive step in s18(1)(b). This requirement can be considered to be compatible with the 'point of novelty' approach in Parker v Flook and other software patent cases.

I should probably also read:

• Microcell (1959) 102 CLR 232
  
• Re BA's Application (1915) 32 RPC 348

This would be to get my head around the 'new use of an old product' concept - substiting algorithm for product, you could be onto the basis for an exclusion.

At 51:

"The specification is a brief and rather simple document free of any details of electronic circuitry or –- indeed -- of any description of actual hardware, and free of any involved examples of the programmer's art. The specification is concerned not with instructing a computer how to solve a problem but with instructing a programmer how to  write a programme, or -- more particularly -- certain parts of a programme."

At 54:

"The word 'programme' has often been used in the sense of a plan of action, a scheme, a list of operations, a sequence of instructions, or a solution for a problem. Sometimes it is meant to cover the mere intellectual concept, at other times it refers to what is actually written down in longhand or flowchart form, and sometimes it refers to an actrual component such as a card, tape or other record on which the idea of the programme is embodied in a form intelligible to the particular machine."

"'Programming' has also been used in a multiplicity of meanings relating to one, or more, or all, of the actions involved to move from the presentation of the problem to the loading of the computer... [T]he analysis of the problem, selection of a solution, perhaps even the choice of a suitable type of computer, the breaking-up of the solution into manageable segments, writing it down, preparation of a flow chart, coding, assempling, compiling or even the simple act of placing a cord into a computer have been described, singly or in combination, as 'programming'"

"The problems to be presented to the computer are not relevant, and they may cover such diverse fields as preparing apayroll, predict the weather, conduct a warehouse operation, play a game of chess or solve a differential equiation. The economic significance or the intrinsic value of any of the solutions is also not relevant. The computer will clearly do what it is told without any reference to the purpose of the operations. The effectiveness and efficiency of the computer's performance will, of course, be governed by the programme used."

At 55:

"[T]he practice of the patent office in matters relating to programming of computers may be summarised in the following manner. Computer programmes, consisting of sequences of instructions how a problem may be solved, are not a proper subject for letters patent. Methods of programming, consisting of the writing down, in one form or another, of a programme are also not a proper subject for letters patent. A tangible record of a programme in physical form may be proper subject-matter for letters patent if it can be differentiated from the prior art by features other than the recorded text of the instructions. And finally, a computer, programmed, by a particular programme, may also be proper subject-matter for letters patent if its hardware is different from the prior art or has been effectively modified by the programme."

Cited authorities (new ones):

• N.V. Phillips Gloeilampenfabrieken's Application (1966) Official Journal, 2932
• International Business Machines Corporation Application (1966) Official Journal, 2395
• Texas Instruments Incorporated's Application (1968) Official Journal 2846

At 56:

"Obviously, some programmes are much better than others. There may be numerous ways of solving problems, not all of them efficient. Short cuts may be discovered, or -- in an iterative process -- more rapidly converging sequences may be found. I have no doubt that the art of programming well calls for analytical skills of a high order. There are also numerous criteria that a programmer has, or would be well advised, to keep in mind, such as the desirability to save computer time, or to economise on its storage capacity, or to provide for simplification of 'de-bugging' procedures, or to limit human operations. All this may require great perspicacity and be commercially significant; but it is not a manner of manufacture."

Anton: you can really see the sign of the times in the next statement - namely that the era of the personal computer has not yet arrived.

"Furthermore, as pointed out by Lloyd-Jacob J in Rolls Royce Ltd's Application [1963] RPC 251,255, when referring to section six of the Statute of Monopolies, it is frequently overlooked that that section includes the further limitation that any letters patent and grants 'be not contrary to the law or mischevious to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient. It would be indeed very inconvenient if a person having purchased, or hired, at great expense a machine capable of performing various functions in any desired seequence as may be needed and directed, were to be prevented from the use of some sequences or instructions."

On NRDC (at 58):

"Of the authorities cited on behalf of the applicant, the first relates to an application by Bernhard Joos (1972) Official Journal 3431... The cited passages from the decision seem to convey the implication that anything that has a commercial significance may be patentable. I can find nothing in His Honour's decision, nor in the decision of the full High Court in the NRDC case, which would support such a generalised conclusion. It is true that the High Court refused to apply a strict mechanistic formula seeking to define the words "a manner of manufacture", but the court did not reject the words as such.

At 264: Of the Jacobean phrase, it has been said that since the NRDC case it has been treated as calling for a decision as to what properly falls within the scope of the patent system, rather than  as providing an occasion for investigating the meaning of "manufacture"; WR Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (1st ed, 1981), p166. Cornish continues (at pp 167-168) that two main ideas recur when distinguishing categories of subject matter which may not be patentable. One is that techniques which related to living organisms (including humans) may call for special treatment... [265] The other recurrent theme is that "intellectual conceptions become patentable only to the extent that they have been embodied in technical applications". The present appeal concerns this second aspect.

At 286: [T]he primary judge found against the appellants on [the manner of manufacture issue]. His holding appears in the following passage (at 594):

The material feature of the claimed combination is the means by which Chinese characters are categorised by stroke-type category and stroke order ... and the use of such criteria to retrieve and display Chinese characters. That is, the procedures used to organise and process the data. The other integers of programming and computer hardware are merely conventional means to produce the desired result. ... The formulation of such criteria and their use as rules to organise and process data stored in a database in a conventional computer are the product of human intellectual activity lying in the fine arts and not the useful arts. The claim disposes no method of manufacture within the meaning of section 6 of the Statute of Monopolies and therefore discloses no patentable invention.

The appellants challenge that holding. They renew their submission, rejected by the primary judge, which his Honour had restated as follows:

The [appellants] submit the claim in the petty patent was a combination claim for a new apparatus. The apparatus was a computer processing apparatus for assembling text in Chinese language characters [287] which produces a particular result, namely, the retrieval and display of Chinese characters on screen for assembly in text. Although a number of the integers represented conventional and known computer hardware, display and processing systems including standard processing programs, the combination of those integers was a computer program or apparatus or programs supplying the Chinese character database, stroke-type category criteria and graphic display of Chinese characters created, when programmed, a new machine which operated in accordance with the steps detailed in the claim. It was submitted that the production of some useful effect, in this case the asembly of Chinese characters on a visual display unit, was sufficient to constitute the computer as programmed an invention under the 1990 Act.

At 287: The NRDC case (supra) remains of considerable importance in this field. It is to be noted that the decision changed the direction of the case law not only in Australia, but also in the United Kingdom. Accordingly, British decisions given before the commencement of the 1977 Act remain of particular significance in Australia when construing the 1990 Act. In both countries NRDC was, as Barwick CJ put it in [Joos], a watershed.

At 286: Section 1(2) of the [1977 British Act] declares not to be an invention for the purpose of the statute, anything which consists of: ... (c) a scheme, rule or method of performing a mental act, playing a game or doing business, or a program for a computer. ... However, the subsection goes on to provide that the exclusion operates "only to the extent that a patent or application for a patent relates to that thing as such".

At 289:  In Australia, when the 1952 Act was replaced by the 1990 Act, the new British legislation was not followed. ... This was a matter of deliberate legislative choice. The materials which make this plain are collected and discussed by Burchett J in NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd (1993) 44 FCR 239 at 267-270.

Our task thus involves consideration of concepts which have evolved, and are still evolving, in accordance with the classic decision in the NRDC case... [T]he right question thus becomes, is this a proper subject of letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies? The question is to be answered bearing in mind that the term "manufacture" has applications beyond limits suggested by its etymology, and that any attempt at precise definition of "manufacture" in s 6 is bound to fail. In the NRDC case (at 271), Dixon CJ, Kitto and Windeyer JJ said, in a passage which warrants repetition:

The purpose of section 6, it must be remembered, was to allow the use of the prerogative to encourage national development in a field which already, in 1623, was seen to be excitingly unpredictable. To attempt to place on upon the idea the fetters of an exact verbal formula could never have been sound...

At 290: [T]the phrase "any manner of new manufactures" has been interpreted over time in such a way as to contain within it distinct principles or doctrines concerned with patentability: Advanced Building Systems Pty Ltd v Ramset Fasteners (Australia) Pty Ltd (1993) 26 IPR 171 at 188-190, per Hill J... The essential point is that the grounds of revocation were capable of development by the common law and did so develop: American Cyanamid Co (Dann's) Patent [1971] RPC 425 at 435-436 (Lord Reid), 448-449 (Lord Wilberforce).

...

As this development continued, the phrase "manner of new manufactures" came to represent the residuum of the central concept with which NRDC was concerned, namely what the High Court called the relevant concept of invention.

At 291: [I]n the 1990 Act, manner of manufacture, novelty, inventiveness and utility are stated as distinct requirements of a patentable invention... Yet in the present case there are passages in the reasons of the primary judge (at 593) which suggest he was influenced in the determination of the issue as to "manner of manufacture" by asking whether what was claimed involved anything new and unconventional in computer use.

...

[A]fter the NRDC case the criterion of "manner of manufacture" has required a decision as to what properly and currently falls within the scope of the patent system. ... [I]n so far as "manufacture" suggests a "vendible product", this is to be understood as covering every end produced or artificially created state of affairs which is of utility in practical affairs and whose significance thus is economic (NRDC at 276-277).

...

"The impact of computer technology on the law of intellectual property has raised legal problems which have proved difficult if not impossible to answer within the framework of existing legal concepts..."

The last case relating to computer programs decided in the United Kingdom before the commencement of the 1977 Act was that of the two patent judges, Graham and Whitford JJ, sitting as the Patents Appeal Tribunal in International Business Machines Corporation's Application [1980] FSR 564. ... The software was a program designed to calculate automatically the selling price of stock or shares by comparing a set of buying and selling orders. It was accepted that the scheme was not itself novel, and that a completely standard computer could be programmed to perform it. Nevertheless, their Lordships, speaking as specialist judges of long experience in the field, held that the patent was good. They said (at 572) that what the inventor sought to claim was a method involving the operation or control of a computer, such that it was programmed in a particular way to operate in accordance with the inventor's method. More than "intellectual information" was involved because the method was involved in the program and in the apparatus in physical form.

Re Invention: "a method for producing a visual representation of a curve image from a set of control points
Per Burchett J:

At 220: It was objected that this claim did not define a "manner of manufacture". Rather, claim 1 was said to recite a mathematical algorithm, which it then wholly pre-empted. An algorithm, named for the Arab mathematician whose work on algebra popularised Arabic numerals in Europe, may be relevantly defined as a procedure for solving a given type of mathematical problem.

At 221: In the present case, the delegate referred to later refinements of the Freeman (supra) test.

At 223: Before considering further the precise point, grounded in the United States cases, in reliance on which the delegate refused the application, it is desirable to re-examine the broad principle which is in question. The leading authority is [NRDC], where the High Court considered the patentability of a new process for ridding crop areas of certain kinds of weeds... They pointed out (at 262) that if a new use of a known substance "consists in taking advantage of hitherto unknown or unsuspected property of the material", the situation is that "there may be invention in the suggestion that the substance may be used to serve the new purpose; and then, provided that a practical method of so using it is disclosed and that the process comes within the concept of patent law ultimately traceable to the use in the Statute of Monopolies of the words 'manner of manufacture', all the elements of a patentable invention are present."

At 224: They said "The truth is that the distinction between discovery and invention is not precise enough to be other than misleading in this area of discussion." These observations seem to be to be as applicable to the laws of mathematics as they are to those of biochemistry.

...

The court's conclusion (at 275) was that "a process, to fall within the limits of patentability ... must be one that offers some advantage which is material, in the sense that it belongs to a useful art as distinct from a fine art ... that its value to the country is in the field of economic endeavour."

At 225: In the present case, it seems to me that the use of the algorithm is not different conceptually from the use of the compounds involved in National Research and Development Corp. Just as those compounds were previously known, so here, it is not suggested there is anything new about the mathematics of the invention. What is new is the application of the selected mathematical methods to computers, and, in particular, to the production of [226] the desired curve by computer. This is said to involve steps which are foreign to the normal use of computers and, for that reason, to be inventive. The production of an improved curve image is a commercially useful effect in computer graphics.

Nor, in my opinion, do the United States authorities preclude this view. The Supreme Court of the United States returned to the subject in [Diamond v Diehr] ... Rehnquist J (at 8) said: "It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection". He held (at 9) the mathematical equation was not "patentable in isolation, but when a process for curing rubber is decised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold ... "

...

Similarly here, the formula is applied to achieve an end, the production of the improved curve image. A method of producing that by computer, which is novel and inventive, is entitled to the protection of the patent laws.

At 1020: The specification does not contain any mechanical or electronic details of the construction of a computer. ... Similarly, the specification does not contain any description of any new programming device.
...
The invention described in the specification is, consequently, not a computer since it can be utilised with any kind of computer. It is not a programming medium as such, since any programming medium will do. ... It is therefore concerned with a new way of solving a specified group of mathematical problems or with a new way of programming a computer to solve such problems.

It is obvious from the very definition of 'invention' that a new way of solving mathematical problems is not patentable, no matter how meritorious or ingenious the new solution may be. The same may be said if the solving of problems is to be carried out with the aid of a digital computer. Even in the broader field of programming generally, as distinct from linear programming, the programme must be regarded as being in an advantageous manner and as such, is not patentable.

At 1021: But even if programming were to be considered as being 'a new manner of manufacture', it would still not come within the definition of invention given in the Act  because, as pointed out by Lloyd-Jacob J in Rolls-Royce Ltd's Application, (1963) RPC 251, at page 255:

It must additionally be borne in mind that, even where a manner of new manufacture is disclosed in a patent application, s.6 of the Statute of Monopolies excluded grants which are mischevious to the State by being generally inconvenient.

Computer programming is a relatively young art and, although many strategems and simplifications have been devised so far, a much greater number may be expected to be devised in the future. It would certainly be expected to be mischevious to the State and generally inconvenient if, after investing a million dollars in a computer, the owner were to find himself prevented from operating it efficiently, or in any other manner he may wish, or with any degree of privacy or secrecy he may desire.

It has accordingly been the practice of the Patent Office to refuse applications for patents where the invention consistent merely of a programme or working directions for a known computer.

At 2396: [T]he inventor's contribution appears to lie in the discovery that a flow table, apart from "illustrating history by numbering", contains also sufficient data for a circuit to be constructed. This may have been a very meritorious discovery, particularly in view of the fact that the existence of hidden wiring code within a flow table had probably not been suspected earlier. Nevertheless, the discovery of the code or the code itself cannot be considered as a manner of manufacture.