What could make the Free Software Foundation (FSF), proprietary software companies, and at least one venture capitalist into allies? The End Software Patents (ESP) coalition, a new organization poised to swing into action next month under the leadership of Ben Klemens.
The campaign currently has seed funding of a quarter million dollars from sources those associated with the group won't disclose, and hopes to augment that with donations from individuals and companies for a struggle that, to judge by the usual amount of time it takes to push major changes through the US Supreme Court, could take five years or more to complete.
Coalition leader Klemens is the author of Math You Can't Use: Patents, Copyright, and Software. He is a Guest Scholar for the past three years at the Brookings Institution, the oldest and one of the most respected think tanks in the United States.
Klemens received a doctorate from the California Institute of Technology, writing on game theory in economics and political science. "I mostly did theory," he says, "but theory is often computer-intensive, so I was spending a lot of time writing software. Also, trying to get a program to run is a great way to put off writing a dissertation."
This convergence sparked Klemens' interest in software patents. "I've written a lot of software, I know how a computer works, and I know what patents are for," he says. "That's enough for me to know that there's a fundamental mismatch between patents and software. This gnaws me. It bothers me because claiming mathematics as property strikes me as unethical -- and I think I speak for every theorist who ever lived on this one. It bothers me because you can't write a theoretical model that respects the real-world aspects of software and still finds that patents would be beneficial."
After a year of research at the Brookings Institution, Klemens produced Math You Can't Use in 2006. Last spring, at the FSF annual general meeting, a supporter urged the book on Peter Brown, the FSF executive director. Impressed by the book and Klemens' obvious passion for the subject, Brown asked Klemens to organize a software patent abolition campaign. After Klemens agreed, the FSF stepped back to become just another member of the coalition, and not its guiding organization.
Why the moment is now
According to ESP organizers, there has never been a better time to challenge software patents directly in the United States.
The current state of software patents came into existence in early 1990s in In re Alappat, in which a lower court ruled that, if an algorithm "includes a physical step of any sort, then that is as physical a process as any machine or chemical," Klemens says. This was a reversal of the legal assumption that had prevailed until then that a computer algorithm was as distinct from the physical action that produced it as a musician's song is from the process of recording it.
This sweeping change took a while to assimilate. It was not until several years into the new millennium that the full implications became obvious and the current atmosphere of trivial patents and patent troll companies really got underway.
The current patent culture was challenged in 2005 when the Supreme Court heard LabCorp v. Metabolite, a case that turned on what Klemens calls "a pathetically trivial physical step." In the end, the Supreme Court did not issue a ruling due to technicalities peculiar to the case, but, as Klemens says, "It does indicate that the Supreme Court takes seriously the problem of drawing a line that says that some things we humans do should not be patentable." Klemens adds that "Every pundit I've met agrees that the Supreme Court is looking for a case to replace [LabCorp v. Metabolite].
"On the legislative front, we've seen a number of bills for patent reform get shot down in the last few years. Reform is desperately needed, but it is stalled -- and it's because of soft patents that it is stalled. Once we restore a rule that not everything can be patented, the rest of patent reform will either fall into place naturally or be much easier to fix.
"The burden of pushing to fix this mess falls upon us, the programmers, because we are hit hardest by soft patents. But this is a thorn in the side of the entire US economy. A number of the financial contributors to our campaign to date are nowhere near the software industry."
Strategy and goals
The details of ESP's strategy are still being worked out. According to Klemens, the campaign will be a combination of legal, legislative, and educational efforts. "The key tactic, and the one which I am putting the best odds on, is a case to replace [LabCorp v. Metabolite]. But we are also looking at our Congress, and looking for a means to ensure that people can write software based on their own ingenuity without risk of being sued."
Klemens acknowledges that patent trolls and monopolists will undoubtedly resist ESP, but he expects a broad base of support for the campaign. "We are here to overcome the collective action problem," he says, and "to gather together everybody who is sick of having to watch what they type because writing down certain words or equations from our own minds could be 'theft,' and make it known in the appropriate [Congressional or Senatorial] subcommittees that we're collectively tired of it.
"Our sole goal is to fix patentable subject matter. That's the gaping wound in patent law today. Not everything should be patentable, and this is true whether you look at it legally, economically, or ethically."
Klemens concludes, "I am actively working behind the scenes to build a coalition for this effort, and if your company or organization hasn't heard from me yet, then drop me an email."