End Software Patents: News

There are no patents involved in the SAS Institute v. World Programing Ltd case, but there’s a very interesting statement from the European Court of Justice’s legal advisors, the Advocates-General:

To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

The context is that a company tried to claim ownership of certain software features via copyright, so “as such“, here, refers to the use of copyright. Now, if the same monopoly was sought through patents, the only difference would be that instead of lasting fifty or seventy years, it would last only twenty. Twenty years is an eternity in software development, so software problems that would exist under copyright-based monopolies would also exist under patent-based monopolies.

It seems likely then that the Advocates-General would also find patent-based software idea monopolies detrimental to technological progress and industrial development. Good to know we might have an ally there.

For more information, or to add your thoughts, see the ESP wiki:

• The SAS Institute ruling by EU Court of Justice – 2011

Note: it’s unfortunate that the Advocates-General refer to monopolisation of an idea “protection”. I’ve added some recommendations about words to the ESP wiki: Terminology recommendations. I’ll try to add more soon. Your ideas are welcome there too.

By studying the movements of the stock market, three researchers from Boston University School of Law have found that over the past twenty years patent trolls have cost publicly listed US product developers 500 billion US$, and the rate is rising year by year. They’ve also shown that very little of this is transfered to the small inventors which trolls sometimes use to justify their existence. That last part won’t surprise readers of this website, but it’s important to have a credible document to prove these things.

[Because trolls are just one of many problems caused by software patents, and aren't the biggest problem either, this figure represents only a fraction of the total harm caused by software patents]

Read on for some excerpts, or read the full paper: The Private and Social Costs of Patent Trolls (source).

Two of the researchers, Bessen and Meurer are already known for their individual writings on software patents, plus and their book Patent Failure. They’re joined in this paper by Jennifer Ford.

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Ben Sturmfels of ESP Australia recently gave a talk outlining the problems caused by software patents. A recording is online at:

• http://www.sturm.com.au/2011/talks/swpat-monash/

Ben will be giving another presentation on January 19^th with more of a focus on the current campaign in Australia:
2:20pm, Thursday January 19^th at the University of Ballarat.

Ben’s talk is a good example for anyone tasked with giving such a presentation. There’s also a wiki page where you can get some ideas or add your own tips:

• http://en.swpat.org/wiki/Giving_good_presentations_about_software_patents

NPR published a really excellent article on patent trolls in the software industry. Great. They then broadcast a radio version on This American Life. Great exposure for the issue, but, it was published in the still-patented MP3 format.

• Sign FSF’s petition for the show to be published in Ogg Vorbis format

Freeing the Internet from patent encumbered audio-video formats is going to take a lot of work, but it has to be done, so we have to keep working on it step by step. Because the authors of this article understand the problems caused by software patents, they’re more likely to listen to our arguments.

The folks at unitary-patent.eu have made a video to explain the dangers of this proposal:

• A presentation about the unitary patent

(For further information, see en.swpat.org/wiki/Unitary_patent )

ESP ed. note: The following article by Richard Stallman was originally published in The Guardian. I’m republishing it here verbatim.

Originally published in The Guardian. Re-published here with permission:
Copyright 2011 Richard Stallman
Released under the Creative Commons Attribution Noderivs 3.0 license.

Just as the US software industry is experiencing the long anticipated all-out software patent wars that we have anticipated, the European Union has a plan to follow the same course. When the Hargreaves report urged the UK to avoid software patents, the UK had already approved plan that is likely to impose them on the UK.

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Rob Tiller (Red Hat) has posted an interesting article about three mainstream articles (NPR, The Economist, Professor Mark Lemley) discussing problems caused by software patents.

That’s great news. Awareness of certain problems is growing in the mainstream press, but discussion of solutions is still quite shallow.

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MPEG LA is blatantly trying to claim a monopoly on online video. The patent system is failing for software, and initiatives to “fix” the system are not working. A clear exclusion of software ideas from patentability is the only workable solution.

VP8 is an attempt to free the software industry and all software developers from this patent troll. MPEG LA did not develop VP8 but it wants to own it nonetheless.

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The US Senate Judiciary Committee’s bill on “patent reform” will not address the main patent problems of software developers.

The bill takes aim at a problem experienced by a small number of large companies, namely, the problem of patent trolls litigating in the hope of a pay-out at the end of a long legal process. Ironically, many of the large companies that will benefit from this bill are the cause of the real patent problems for software developers.

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(Temporary note: For statements supporting this article’s title, see en.swpat.org/wiki/raising_standards…)

The below text is a notice from the USPTO about tests they’re removing in order to make it less difficult to pass the test for obviousness. Low obviousness standards (silly patents) is not the mains cause of problems, but it aggravates already-problematic domains such as software patents.

An official PDF version of the text is available on ipeg.eu.

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Canada’s Federal Court (FCAFC) has ruled that Amazon’s 1-click shopping patent describes patentable subject matter. Amazon’s patent was rejected last year by the Canadian Patent Appeal Board on grounds that business methods are not patentable subject matter, but that rejection has been thrown out by the Federal Court.

Analysis of the court’s decision can be found on en.swpat.org:

• Amazon v. Commissioner for Patents (2010, Canada)

I’ve added a wiki page for analysing the "Cabinet for the blind" example. It’s an example that was used in a 1980 amicus brief for the Diamond v. Diehr case in the USA. Below are the details. In looking into this, I also turned up a few interesting quotes about pen and paper patents. Comments welcome on the wiki.

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The below letter is ESP’s submission to the USPTO 2010 post-Bilski consultation. The best part of the Bilski decision was that it left the door open for excluding software from the patent system in a future ruling. Instructions about what has to change today are a little more subtle, but we’ve formalised three here which we hope the USPTO will take into account.

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To prepare a submission for the USPTO’s Bilski consultation (deadline: 27 sept), I’ve been reviewing the various analyses of the Bilski decision. I think the best was Dan Ravicher’s (of SFLC and PubPat). It was an audio presentation, so below is a transcript I made. You can find the audio on softwarefreedom.org.

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Below is the text from http://edocket.access.gpo.gov/2010/pdf/2010-18424.pdf

To help ESP reply to this consultation, please contribute to this wiki page: USPTO 2010 consultation – deadline 27 sept.

Formatting of the below text is a work in progress (25 Aug 2010). This is the second of two related documents published on news.swpat.org; the other is USPTO’s 101 Method Eligibility Quick Reference Sheet – as text.

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The USPTO is seeking comment, until 27 Sep 2010, on how to interpret the Supreme Court’s Bilski decision.

To help ESP reply to this consultation, please contribute to this wiki page: USPTO 2010 consultation – deadline 27 sept.

Below is a text published (pages 3 and 4) by the USPTO when announcing this call for comment. This is the first of two related documents published on news.swpat.org; the other is USPTO interim guidelines request for comment – as text.

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Australian residents and nationals, please sign this letter:

• Open letter to abolish software patents in Australia

For non-Australians: please contact people in Australia to raise awareness of this.

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New Zealand’s government has announced that they will not further modify their proposed bill and that they still agree with those “opposing the granting of patents for computer programs on the grounds it would stifle innovation and restrict competition.” (Background: New Zealand)

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Some people have asked where they can read the patent which was the object of Bilski v. Kappos. The answer is that it’s a patent application and as such it’s confidential. However, the key excerpts did get published via the opinions of the various courts which rejected it. Keep in mind that the application may have been modified since its filing in 2006, and the authors have expressed their intention to modify it and try again to get it granted. With that said, below is the text we know of.
[UPDATE: We have almost the full text, thanks to contributor Gibus]

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Below is the court’s opinion, as text. For analysis, go to Bilski: analysis of Supreme Court decision.

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