Jeremy Malcolm — who is also the manager of open source vendor Terminus Network Services — told delegates to Linux.conf.au in Canberra the poor quality of the patent examination process by the responsible body, IP Australia, combined with open source developers' lack of funds to fight legal action, were serious flaws in the regime. Developers faced serious problems when applying for patents or defending against legal action from patent-holders as a result.
Malcolm said IP Australia often did not check documentation of prior art held in non-traditional formats such as source code or manuals, rather than journals or other documents.
"There [are] a lot of widely used and apparently obvious inventions that have been patented because the patent attorney didn't take another look at it," he said.
Malcolm blamed the poor salaries paid by IP Australia to its examiners as contributing to these deficiencies.
"Patent examiners aren't necessarily very well paid, so it doesn't attract the best quality people to those jobs," he said.
The lawyer added the free and open source development community in Australia faced an uphill battle in applying for patents or defending against patent holders' legal action compared to its proprietary software rivals.
"They [open source developers] don't have the money to pay licence fees, spend money on patent infringement lawsuits and they don't have a stock of their own software patents to cross-licence with whoever is alleging infringement," he said. "Most open source developers in fact don't even have the resources to find out whether their code infringes patents.
"The cost of obtaining a patent in Australia and renewing it to the maximum of 20 years is about AU$15,000. If you want to have patent protection in multiple countries in the world you are going to have to pay considerably more than that".
The legal issues associated with software patents in Australia are being echoed around the world, with IBM in the United States recently calling for patent reform and the European Union rejecting universal acceptance of software patents for Europe.