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[ossig] Software Patents in Malaysia: Part 2

Part 2 of the PIKOM PC3 Conference, written by Yoon Kit:


Very well written, I thought. Maybe others that were allowed in could
share their impressions.


As mentioned in Part 1, I had the opportunity to listen to Mr Deepak
Pillai from haryantideepak Advocates & Solicitors. His talk was
insightful, and encouraging in that there are other people besides Free
and Open Source folk who understand the threats Software Patents may
inflict on the local Software Development community.

Deepak_1His talk was simply entitled "Intellectual Property - Know your
rights." He demonstrated his experience in this field, because the first
thing he did was to explain what the ambiguous IP term meant.

        "A category of intangible rights protecting commercially
        valuable products of the human intellect"

He then explained the differences between Trademarks, Copyright,
Patents, Industrial Design and Trade Secrets. He then went on to an
overview of a companies need to have Intellectual Asset Management for
protection, additional revenue and cost savings. He was talking about
managing standard IP, not to become a patent troll. 

Regarding Software Patents, although patents are now granted very easily
in the US, the European Union has recently reject software patenting.
Also in Malaysia, he comments, Software Patents per se are not

He notes that Software patents are seen as an inhibitor of the
production of  both FOSS and proprietary Software Development in
Malaysia. Reason being is that it puts developers and users at risk of
patent infringement suits. It also requries developers to conduct
searches to be aware of existing patents before proceeding with
development work. This is wasteful in both monetary, manpower and time
resources. The USPTO system of granting software is open to abuse as
registration is easily acquired and a challenge requires substantial
financial capacity which not many start-ups have the deep pockets.

His views on Software Patents became apparent when he described a
thought experiment; if Malaysia were to attempt to try to win the IP war
using Software Patents to balance the tech deficit, he predicted it
would be a losing battle. Actually, a total wipeout: it would be like
playing a game of rugby against 7ft giants when you are just 1ft,
against an incline of 45  degrees! The reason being, IBM alone patents
over 3000 applications a year, as such has a warchest of over 30,000
(spanning 10 years of accumulation) plus the HPs, Microsoft and Suns of
the West, a developing country would only be able to apply for 300 max
if they are lucky, would just get crushed.

In the 2004 Asian Government Leaders' Forum,  Steve Ballmer threatened
to mitigate against competitors where Microsoft holds patents, and Linux
could be a candidate as the kernel already violates 228 patents. More
importantly he reportedly said:

        "Someday, for all countries that are entering the WTO (World
        Trade Organisation), somebody will come and look for money owing
        to the rights for that intellectual property"

So whether or not Malaysian Patent Law allows Software Patents would be
moot if Malaysia proceeds with the US-FTA in its entirety regarding
Intellectual Property. Large foreign software companies will be able to
descend on local software houses via the backdoor and lock us out of our
own markets.

With this, he highlighted:

      * Are Software Patents in the interest of Software development in
      * Are Software Patents in the interest of Malaysia?
      * Possible introduction of requiremnts to recognise software
        patents via Free Trade Agreements.

These warnings are clear and we need to be vigilant in the upcoming
development of the US-FTA.

In the Q&A, Hong Yee asked regarding the progress of the talks with the
US FTA, and if  Software Patents are included.  Ng Wan Peng from MDeC
attempted to answer but really could not as she is not included in the
talks. Deepak also is not involved but encouraged people to learn about
these issues and raise these to the relevant people who are involved
with the talks. 

However he added that Software Patents are not the cause of the problems
facing the software industry now... its the ease in which the USTPO is
awarding patents to the applicants. A regular mechanical patent requires
detailed schematics and actual operational machines before it can be
awarded to the applicant. However Software Patents just requires a
'concept' to be documented. No actual implementation in code is
necessary! This provides huge leeway in terms of approval criteria and
subsequently interpretation in enforcement. To me, it highlights the
huge difference between Hardware (Traditional) Patents and Software
Patents. One being undeniably useful, and the other redundant.  

I asked "Why do we need Software Patents to protect software? Does
Copyright Law provide sufficient protection?" Deepak immediately
answered "Yes, current Copyright Law is sufficient in protecting
Software Intellectual Property." This is obvious too, as we do not see
rampant piracy nor disregarding in IP in countries like Europe or UK
which do not need Software Patents to further protect software. 

A chap from Bernama then asked "If Software Patents are not in law then
how will the BSA enforce their rights?" Obviously he was not paying
attention... Another asked about indemnification, but I thought it was
irrelevant to the talk.

Anyway, it was a really informative session, Mr Deepak really knows his
stuff and it would be a great service to the community if he could speak
again especially to influential people and laymen alike. He is
articulate, knowledgeable and effable; our very own Eben Moglen



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