Free trade between Australia and the US has the potential to introduce draconian intellectual property laws, but popular open source software is unlikely to be the target of patent infringement lawsuits.
During a presentation at this year's Linux.conf.au Linux conference in Canberra, online legal resource iLaw director Jeremy Malcolm spoke of the dangers a liberal software patent system poses to open source software, but agreed that popular software, like Linux and Samba, is unlikely to be affected.
Malcolm said with many open source applications in use by countless numbers of organizations, taking action for a patent infringement would be difficult.
In the case of smaller, open source projects, however, patent action could force an abrupt abandonment of a project by developers without the resources to defend themselves.
"The weakness of the patent system is that you don't have to use the actual patent," Malcolm said. "Companies can just use patents for tactical purposes, like warding off competitors or as a bargaining chip to cross-licence."
In such cases large companies can block out smaller competitors in the software market.
The Australia-US Free Trade Agreement promotes stronger copyright laws here, but not stronger patent laws.
"The FTA does not import the US system [but] the FTA mostly makes changes to copyright with terms extended from 50 to 70 years and introduction of a Digital Millennium Copyright Act-style procedures for ISPs."
This has the potential to introduce "a new ground of opposition".
To achieve patent "harmonization", the FTA encourages the reduction of differences in law and practice. Malcolm believes this brings simplicity and cost advantages, but comes with the loss of independence for our own patent system.
Malcolm outlined the dangers of software patents to OSS developers with reference to the 283 potential patent violations in Linux.
"That it is only a potential problem doesn't make it any less a real problem," he said. "So many software patents are so obvious because of lack of documentation and poorly trained patent examiners."
With this on the horizon, Malcolm recommends a few simple steps to avoid software patent infringement by working "within the system".
"Run your software past a patent attorney and do your homework first by reading patent databases, mailing lists, and newsgroups," he said. "Work around the patent if possible or license the patent from the owner who may give it to you for free."
Malcolm also recommends promoting the use of alternative technologies unencumbered by patents.