Re: [Patents] AU US FTA & Swpat

[Jean-Marc Le Peuvédic <cocktails@freesurf.fr>]

Hartmut Pilch wrote:

> > > >   http://kwiki.ffii.org/Ausfta04En
> > > >   
> > > >        
> > J'ai lu tout le chapitre 17 de l'AUSFTA et il n'y a rien dedans qui 
> > concerne la définition des champs de la technique et qui force à y 
> > inclure les logiciels.
> >    
>
> See the quotes and analysis on the named kwiki page: the AUSFTA destroys
> or at least seriously restricts the ability of any party, especially AU,
> to treat the word "technical" in a limiting way.
>
>
>  
I read it all. The article by Ross Gittins is a newspaper article, and 
does not make any quote of the AUSFTA. David Richardson only talks about 
software patents in terms that suggest that they are allowed both in 
Australia and in the USA, and only writes that quality standards for 
patents are lower in the USA.

It boils down to one detail of procedure which is not very clear for me 
: let's assume that I got a low quality swpat in the USA, and that I am 
now trying to extend territorial coverage using the procedures of the 
PCT. The question is : is my patent application going to be examined 
exactly like a new patent application in the new territories ?  For 
instance, is it going to be examined by the French INPI or only by the 
EPO (obviously different standards) ?

The threat of 30000 swpats already awarded by the EPO is nothing 
compared to the threat of a million of such patents waiting in limbo 
between the early disclosures, the filing, the request for examination, 
the priority year, etc. American applicants have many ways to soften the 
upfront cost, and to delay investment in patents until they can be 
effective, while being able to go public and make profit with their 
inventions.

One thing the AUSFTA imposes is the possibility to disclose an invention 
and file a patent application for it at any time during the following 
year. This creates a lot of insecurity for software developers because 
when they see a neat function that they think is going to be a must have 
a few months later, they have the choice of either investing in the 
development effort to imitate that function, with the risk of a patent 
popping up when they hit the market, or they delay work on that function 
for 12 months with a risk of hitting the market with an inferior product.

Someone knows how it works ?

Jean-Marc Le Peuvedic