With regards to TRIPS, I don't think anyone allows patents of Maths. Or song writing techniques. Or, until recently, business methods. So there is clearly some ability to limit the applicability of patentable matter. And Europe clearly excludes "Software as such", and this was tested in their parliament. But going down the free vs proprietary route is quite different. And I would say a potentially huge distraction. What exactly does free mean anyway... Please leave it off the agenda. Anthony On Sun, Feb 12, 2012 at 7:28 AM, Ciarán O'Riordan <ciaran@member.fsf.org>wrote:
Three things about a free software exception:
1. It would pretty much mean recognising software as being patentable. (This might be the biggest problem.)
2. It would require putting a definition of free software in a law. (If this gets messy or botched, point #1 will hit us in the face.)
3. Australia has to comply with TRIPS:
I think the two relevant parts of TRIPS are article 27:
"...patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology..."
And article 30:
"Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties."
http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm#5
So, would an "if you respect people's freedom" exception be allowed?
The only attempt I know of at using this rule is the "curing epidemic" exception that some African countries with AIDS epidemics and no money thought of implementing. They were told 'No'. (A new worldwide treaty had to be negotiated.)
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