February 29, 2008

End Software Patents project comes out swinging

Author: Bruce Byfield

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.

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