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End Software Patents project comes out swinging

By Bruce Byfield on February 29, 2008 (7:00:00 PM)

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Four months after being announced, the End Software Patents project (ESP) is launching a new Web site with arguments for economists, computer scientists, lawyers, and lay people about why they should support the project. Prominent on the site is the publication of a report on the state of patents in the United States during 2006-07, and a scholarship contest that will award $10,000 for "for the best paper on the effects of the patentability of software and business methods under US law."

The project is being launched with initial funding of a quarter million dollars, supplied primarily by the Free Software Foundation (FSF). Under the directorship of Ben Klemens, a long-time advocate of software patent abolition best-known for the book Math You Can't Use: Patents, Copyright, and Software, the project is being supported by the FSF, the Public Patent Foundation, and the Software Freedom Law Center (SFLC).

One of ESP's goals is to enlist support from academics, software developers, legal experts, and business executives. Its initial supporters show that the project is already well on its way to building such a coalition.

"Software patents give the megacorporations a sort of dominion over the whole software field," says Richard Stallman, FSF president and founder, explaining his organization's support of ESP. "For all other software developers, and for the users of software, they are dangerous. We have to eliminate them." The FSF is committed to continuing to raise funds for ESP indefinitely until it achieves its goal of abolishing software patents.

At the SFLC, Chairman Eben Moglen expressed similar views, describing the present American software patent system as "a significant long-term nuisance and occasional long-term threat." Moglen notes that, as a nonprofit organization, the SFLC is limited in the political advocacy that it can undertake. However, he anticipates doing "what we can to provide intellectual material for legal activity that we are permitted [and] we will, if possible, assist our clients in the passing of legislation that is helpful in eliminating software patents." Moglen also expects the SFLC to assist in educating the legal community about the issues surrounding the campaign.

Another supporter of ESP is Brad Feld, founder and chair of Mobius Venture Capital. An opponent of software patents since he studied in the late 1980s under Eric von Hippel, the famous innovation expert at at the MIT Sloan School of Management, Feld describes software patents as "a gigantic waste of time and money," arguing that "you'll find very few sophisticated investors who invest in companies because of their software patent portfolios," except outright patent trolls.

Nor, contrary to what many believe, are patents an incentive for investment, according to Feld. He dismisses the idea of "spending money and time in an early stage company" to obtain patents, because "going through the patent process means waiting three or four years, when really what's more important is how you play out in the market. The actual cost of either asserting or defending a patent far outweighs the benefits."

To promote ESP, Feld plans to continue blogging on the subject of patents, as he has done for several years. He is also due to sit on an advisory board at the University of California at Berkeley with technology legal expert Pamela Samuelson, and committed to funding a full-time researcher on software patents at the University of Colorado Law School.

Web site resources

As well as serving as a focus for the campaign, the ESP Web site is designed to educate people on the subject of American software patents. Several pages summarize the arguments against software patents for a variety of audiences. For those familiar with the subject, these pages have little new. They explain the vulnerability of everyone to patent infringement cases, and make several well-known arguments, such as that software patents stifle innovation, and that the idea of patenting mathematics or source code is fundamentally absurd. Instead, the site suggests, copyright would be a more suitable form of protection, and certainly a less wasteful one in terms of time and money. However, for those new to the subject, together these pages quickly make an academic case for the subject.

Perhaps the most original of these pages is the one aimed at lawyers, which describes the potentially important cases involving software patents today. Another page lists major cases and settlements.

Another major source of information on the site is the PDF report on the state of software patents over 2006-2007. Entitled "The current state of software and business method patents: 2008 edition," the report is obviously intended to be the first in an ongoing series.

Much of the report's 11 pages is devoted to summarizing the history of American patent law, as it moved from considering software unpatentable in the 1980s to allowing software patents in the mid-1990s, and created the increasingly untenable situation of the present. For those who need to be brought up to speed on the subject, the summary is an ideal resource.

The rest of the report is a miscellany of related information on current trends. For instance, the report estimates that, at an average of $4 million to litigate a mid-sized patent, some $11.4 billion is wasted per year on software patent litigation in the United States. The report also notes that, despite the general academic trend to accept software patents, three recent studies found no evidence that patents had any effect on innovation, while a fourth suggested that patents stifled innovation.

The report further suggests that, based on the tentative changes contained in The Patent Reform Act of 2008 (S.1145), a bill currently before Congress, reform is unlikely to improve the current situation. Although proposed changes such as a change from granting patents to the first to file to the first to invent, and a set scale for assessing damages, are welcome, the fact that US patent law does not treat software as a unique category makes extensive change almost impossible, according to the report.

The site offers ways to put this information to practical use. However, although one page is entitled "What can I do?" the main call to action is a call for papers prominently displayed at the top of the menu.

As well as the first prize of $10,000, the contest is also offering prizes of $4,000 and $1,000. "Papers may be from law, economics, management, computer science, or any other field." according to the contest page, and "may be empirical or qualitative." Despite the obvious perspective of ESP, the contest instructions include a warning that "bias and quality of scholarship tend to work against each other. Papers that let the facts and the data speak for themselves will fare better than papers that work from a foregone conclusion."

This comment echoes the general style of the site. For all the site's obvious bias, the general tone is one of reasoned academic discourse, with statements carefully supported by evidence and some attention paid to answering opposing arguments.

ESP's initial strategies

As the site suggest, one of ESP's primary concerns is education about patent issues. But the project also intends to assist corporations contesting patents, either in court or in the US Patent and Trademark Office -- although only "to the extent that the patent is a test case for questioning patents at large," Klemens says.

One area that ESP will not get involved in is attempts to reform existing software patent law. "There are on the order of 100,000 software patents out there today," says Klemens, and "we just don't have the bandwidth to re-examine all those patents." Besides, some patent reform is already happening, because of such cases as KSR v. Teleflex, which should make the filing of obvious patents harder. Advocacy groups for reform, such as the Electronic Frontier Foundation's Patent Busting Project, are already underway. And, ultimately, ESP's goal is abolition, not reform.

For now, at least, ESP seems to reject politics as its main battleground. Speaking of the bill now before Congress, Klemens says, "The Patent Reform Act could have made Senator [Patrick] Leahy a hero in computer geek circles. Instead, it isn't doing much that we in computing would be significantly concerned with."

By contrast, the courts seem a venue far more likely to get results. "The Patent Office has recently rejected a spate of patents," Klemens says, "and those rejections have gone to the Federal Circuit, which is taking some of them as a chance to seriously reconsider the scope of what is patentable."

Klemens is especially interested in In re Bilski, a case that centers on the question of what is patentable. In the last few months, Klemens has been looking for such a test case, and he believes that "the Federal Circuit simply handed us an agenda" by hearing this case.

Klemens is currently working on an intervention in the case. "I have been working like crazy on an amicus curiae brief for the ESP. We've been making an effort to coordinate with other organizations to make sure that all the bases are covered in one brief or another, have been searching for companies that would like to sign on to our briefs, and otherwise making sure that our team has a strong showing in this case."

But Klemens is too experienced to imagine that obtaining ESP's goals will be so simple. "Even if we win Bilski -- and we can only guess the odds of that -- the fight is not yet over. There are people who lobby Congress and the courts for monopolies on their products all the time, so we need to be vigilant that any gains we're making now are not simply reversed."

In other words, ESP is probably in for a prolonged fight. For now, though, it has made a promising start.

Bruce Byfield is a computer journalist who writes regularly for

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on End Software Patents project comes out swinging

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'Peoplemen'? Go buy a dictionary

Posted by: Anonymous [ip:] on February 29, 2008 08:58 PM
'arguments for economists, computer scientists, lawyers, and lay peoplemen about why they should support' ... wtf are 'peoplemen'??


Re: 'Peoplemen' -- grammatical error.

Posted by: Anonymous [ip:] on March 02, 2008 03:03 AM
Mr. Byfield obviously made a mistake while trying to be "politically correct." Laypeople is a new age, freshly created word. "Laymen" is the original and correct form. People forget that the English language, does indeed, default to the masculine when either the the gender is unknown, or a mixed-gender group is referenced. Check your grammar books, folks, if you don't believe me. You'll also find people following the same poor logic, replacing "him" with "they" even when a singular being is referenced.


Re(1): 'Peoplemen' -- grammatical error.

Posted by: nanday on March 04, 2008 06:25 PM
Grammar isn't nearly the cut and dried thing you imagine. For instance, the use of "they" for "him" for the indefinite pronoun goes back five centuries, and is probably the most common usage.

As for "lay people" vs. "lay men," language reflects your reality or the one you would like to have. I'm not in the least apologetic about using language in keeping with my opinions -- only embarrassed that I made a typo.

- Bruce Byfield ("nanday")


The perfect case for a challenge to the Supreme Court vs software patents (all cards in Texas Hold'e

Posted by: Anonymous [ip:] on March 01, 2008 01:18 PM

<a href="">Barracuda Networks Asks For Help Finding Prior Art to Defend ClamAV - Updated 3Xs</a>

The case where the defendent is being sued by Trend Micro for patent infringement BECAUSE
they are using ClamAV in their "hardware device" style product... IS THE PERFECT CASE to take to the Supreme Court vs software patents. Software is software... and once the math is introduced in this case, then it will apply to all software (software is software... it is all math)!

All the elements are there. 1st it is about an anti-virus open source product. Viruses are the most prime example of software that is all about math. You can not separate in the mind of anyone how anti-virus works against a virus... it is all math. Math is something that thru the ages every society has had depended on the non-proprietary state of Math.

Where there is a comment in that section that relates to using this case as a "take it to the Supreme Court" case, is made by a comment in that article:

<a href="">Security, DRM too is the topic, bring in all the "bigger questions". So, "ALL IN" Texas holdem!</a>

What else is there to say....

Send in your stuff as requested.... SOFTWARE PATENTS need to go away... the sooner the better. The UK Court of Appeal has already made steps in ruling toward clarifying the issue by ruling in two different cases against both software and business method patents. For an article about the software patent ruling see:
<a href="">Appeal court ruling sets marker on UK software patents | The Register</a>

It is time for the rest of the world to wake up as well.




End Software Patents project comes out swinging

Posted by: Anonymous [ip:] on March 02, 2008 04:19 AM
Why is it just business methods and software patents, surely the human race staying sick to fill the bank accounts of the pharmacutical industry is just as important?

Is there any valid reason for patents at all?


Labs and Lab Staff (higher education), and fancy equipment, all cost money... if breakthru, then pro

Posted by: Anonymous [ip:] on March 02, 2008 11:57 AM
Software can be developed on a $200 laptop under a tree. Software is just taking something that is already OBVIOUS and most likely being done in an analog sense, and just speeding up the clock and make it go faster. It is OBVIOUS that computer just make analog process, such as the decision to buy (one click) quicker. Nothing new there. Just a patent office, and court system with lawyers who don't understand that Intel when it develops a chip (and patents the design), actually could prevent any uses of the chip, or could require an amount of money to be paid to them for the uses that are developed for that chip... the chip defines what you can do or can't do. The chip is the chalk board, and the chalk, the software is just what is written on that invention... like words to a story... nothing new, and dependent on copyright.

Drugs, take huge investments, and time to explore ideas that are so new, that don't come out of thin air, that in labs that cost HUGE amounts of money to run, and after all that because what is being done is so NON-OBVIOUS that there is a risk that nothing useful is invented or discovered at all. When something is found out, like a cure for HIV/AIDS (obviously a non-obvious discovery, as many have been trying for over 10 years to find out the answer to this mystery with everyone striking out), well if such a discovery is made, with the HUGE cost to get there, then a patent just says that the company that finds this answer can have a monopoly for X amount of time in order to recover and profit from this NON-OBVIOUS discovery.

Computer software = Obvious, as it is just taking analog and moving it to a quicker "digital" (note that digital is not a noun and really is imagined if you look at what it really is, or is not). It is just math.

Designs or Drugs, or physical discovery = has to be NON-OBVIOUS to be protected... meaning you can't simply dream up something where you take this item and mix it with that item, and you have this... like the Supreme Court saying that taking a gas and brake pedal (invented long ago), and a sensor (invented long ago), and idea to make this combination adjust to folks with short legs (seat adjustments and this idea, was invented a long time ago), and SO this is OBVIOUS and can't get a patent.

Drug designs? Are NON-OBVIOUS... otherwise, we would have a cure for everything right now.


Re: Labs and Lab Staff (higher education), and fancy equipment, all cost money... if breakthru, then

Posted by: Anonymous [ip:] on March 04, 2008 12:25 PM
The "drug designs should be patentable" position oversimplifies the reality. First of all, look at where a lot of the funding comes from for medical research: the public purse, either directly (government-funded research) or indirectly (government-funded health care provision). Saying that there'd be no incentive to look for cures for diseases without private investment is total fantasy - even hardened economists can state many economic benefits for doing research into medical treatments, whether the private sector is involved or not. Indeed, you can argue that the current agenda amongst drug companies - promoting cosmetic drugs for developed world "luxury" problems - actually obstructs work in fighting the real dangers to human health worldwide. And I think you'll find that when some company "finds the answer" to HIV/AIDS, they'll have built upon a lot of prior work, probably funded mostly by the public purse. It would hardly be fair if some company got to "skim off the cream" from the results of this collective effort.


As for the designs themselves, it seems wrong that you could patent a chemical formula, for example, since that is merely a statement within some kind of formal system where various natural rules dictate how the symbols may be combined, although I imagine that the US patent system probably lets companies do this, anyway. Now, the process of making chemicals, medicines, and so on might be complicated, and I can understand how people might not want others to trivially acquire knowledge that has been accumulated expensively, but then if people can successfully "reverse engineer" drugs, how non-obvious can the process to make those drugs have been? Moreover, if the process is merely a combination of widely known scientific principles, how ethical is it to let someone seal the lid and sell access to others?


Finally, in the realm of the pharmaceutical companies, there's an increasing tendency to patent genes. Although the process of discovering the "purpose" of genes can be very involved (and expensive), it is far from ethical for someone to claim ownership of the effectively natural processes that take place around such things, especially since imposing such monopoly terms on parts of the natural world may restrict access to treatments amongst particular groups of people, notably specific ethnic groups - a reprehensible outcome. If there's ever a choice between revisiting a particular model of doing business or restricting access to treatment, I'd imagine that most decent people would sacrifice the not-so-sacred cow that is the way pharmaceutical companies think they should be making money, rather than the basic right that universal access to medical treatment should be.


Patent submissions should involve more than the item...

Posted by: Anonymous [ip:] on March 02, 2008 02:19 PM
Patent submissions should involve not only the patentable item (software is a piece of mathematics, not a physical item, as Klemens points out) but also evidence that it took at least some time (say, a minimum of 2 years of development) and money (say, a minimum of 2 million dollars) to bring the item to fruition. Patents should then allow the inventor a limited amount of time to collect royalties (say, 5 years) to make back their research and development dollars and then it should go into the public domain. Patents should also require the inventor to conduct a meaningful study of the safety, environmental hazards, and the physiological impacts on humans that are posed by the item. The onus should be on the inventor to bring about all this evidence and research before any patent is issued by the public's government to help protect the inventor's significant investment. If no significant investment was made, then no patent should be given. Agreed?


Re: Patent submissions should involve more than the item... WRONG idea.

Posted by: Anonymous [ip:] on March 03, 2008 04:15 PM
So with software they did some debugging and rewrote some code.

It took about as long to write a "Harry Potter" book as well... that is protected by copyright, the same as the code in the software in ANY software program is also protected.

What is should not be protected is an exclusive right, with software, to write a "Harry Potter" software progam, and have the whole genre of "stories about a wizard or a boy" locked up by patent law for 17 years. Heck, it that were the case, then we would be stuck with badly written code... and no chance of a better written version to come along (society would suffer), or worse a "prohibition on any stories about wizards and young boys and girls" for 17 years. That is why software patents are wrong (and should not be used as protection for any period of time).


End Software Patents project comes out swinging

Posted by: Anonymous [ip:] on March 02, 2008 05:10 PM
Some folks don't like me using the IPR acronym, because they define it as a subversive act to undermine the sharing of knowledge.
FMP - IPR should only be owned by the individual (prevent buying and selling) who created it, and allow lease (agreements/contracts) to institutions (schools, businesses, governments, religions ...). Institutions have no intellect (reality) and have no reasonable claim to intellectual property created by an individual, group, community. Protect the freedoms of the artists, intellectuals, innovators ... from exploitation by legal fraud and corporate/government hubris. In the USA this would (maybe) indicate an amendment to The USA Constitution, but it would protect IPR, for the individual, from corporate sponsored federal/state laws allowing seizure of personal intellectual property.
Under property rights (FMP) there are three specific types IPR, HPR, and RPR.
IPR - Intellectual Property existence is due to the field of human/sentient intellect and endeavor (includes theory/design).
HPR - Human Property existence is due to individual rights: (1) personal (speech, beliefs ...), (2) communal (genetics, food, ...).
RPR - Real Property existence result from the known laws of application science and physics (includes land, house, oil rig, modified/aggregate materials).
The difference between magic and science is knowledge. IPR and HPR keep knowledge "Open" to everyone equally for use, innovations, advancements ... RPR when applied to IPR/HPR restricts and retards economics, education, science, math ....
One last point is - all IPR and HPR should be "Open" (no fees/encumbrances) to use, research, innovation ... for all humanity. When RPR uses IPR/HPR and value/profit is generated, then (arbitrated/contracted) IPR/HPR proportional value should share, because the RPR products/systems would not exist without the human contribution, indicating (for me) the human contribution exceeds the business RPR contribution; So, after the (energy, material, marketeer ...) bills are paid, about one half of the remainder should be split between the IPR/HPR holders and the government for protecting the IPR/HPR for humanity.
I follow the laws of the land I live in, but I will never accept the present IPR laws as anything more than dejure/fiat exploitation, much like feudal lords (them U$, EU, other plutocrats) and peasants (US, EU, others).
FMP is used for "From My Perspective" "For My Principles"


End Software Patents project comes out swinging

Posted by: Anonymous [ip:] on March 02, 2008 05:20 PM
I guess, I am saying above END the legacy patents and copyrights laws and replace with laws that support democracy, capitalism, global economics .... Presently the patents and copyrights laws in the USA and internationally are very harmful to human rights, innovations, science, and economics. I sometimes think, we have gone from social-welfare to corporate-welfare.


End Software Patents project comes out swinging - now its time to train so to hit the target with a

Posted by: Anonymous [ip:] on March 03, 2008 04:09 AM
This software patent issue is like claiming that you can drive a car into a solid wall @ 500mph and live unharmed. It simple goes against physical law, and other things that are not of patentable quality, but rather of human mental characteristics. Contradicting this nature of software with patents is going to cause human mental constraint problems, like the problems we are having... See: <a href="">Abstraction Physics</a> and consider why it took 300 years for the hindu-arabic decimal system to overcome the limited roman numeral system... Certainly the idea that only a fool would think nothing (zero) can have value helped to delay the improvement..... could downing software patents be so simple? Occums razor! But it seems nobody wants to focus on producing the proof, but rather collect up on the resulting evidence of what happens when contradicting the nature of software... uh errr human mental functioning nature.


End Software Patents project comes out swinging

Posted by: Anonymous [ip:] on March 04, 2008 12:27 AM
NOTE: The highly regarded Professor at Cal ISchool is Pamela Samuelson, not Richardson.


Re: End Software Patents project comes out swinging

Posted by: nanday on March 04, 2008 06:19 PM
You're right. Thanks for the correction.


End Software Patents project comes out swinging

Posted by: Anonymous [ip:] on March 04, 2008 10:45 AM
simple idea

how about if anyone has one of thier patents contested and they lose, they lose *all* patents they hold.

FOr small businesses the risk is the same as always - for large corps the risk suddenly becomes significant.

For IP vultures, you have just destroyed thier entire business model.


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