Ending software patents: Has the time come?
Attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system, a new project was unveiled Thursday designed to, as its name bluntly indicates, End Software Patents. (Press release is here. The group’s “first yearly report” on the state of software patents is here.)
The group is intended to become a clearinghouse for information and a hub for those strategizing legal challenges, according to its executive director, Ben Klemens. Though End Software Patents will not initiate litigation of its own, it will be on the lookout for appropriate test cases to support as they arise, he says.
Though the project is being sponsored and funded by leaders of the Free and Open Source Software movement, it hopes to attract support from the wider community of businesses, financial institutions and universities that have all been blindsided in recent years by lawsuits over software patents and their close-cousins, business-method patents.
The End Software Patents Web site, here, highlights a long list of diverse businesses that have been sued for allegedly infringing software patents, including the Green Bay Packers, OfficeMax, Caterpillar, Kraft Foods , ADT Security Services, AutoNation, Wal-Mart , Walgreen , Barnes & Noble, Circuit City Stores , Ford Motor , E I du Pont de Nemours and Co. , and so on. In most cases, the companies have been sued because of certain basic, routine functions performed on their Web sites — the way images are displayed, the way data is gathered or transmitted — which are said to infringe software patents.
The group also hopes to attract support from the many financial institutions, including JP Morgan , Merrill Lynch , and NCR Corp. , that have been asked to pay patent holding company DataTreasury for permission to send check images over the Internet. (For a Washington Post story about remarkable proposed federal legislation directed specifically at the DataTreasury patent, click here.)
The point, explains Klemens, is this: “If you’re running a business of any sort, you have to care about the software and business method patents.” That’s because nearly every business today operates a Web site and employs a staff of in-house IT programmers who enable them to conduct business in the digital age. In that sense, every business is now a software business.
Klemens is a mathematician (a guest scholar at the Brookings Institution since 2003) who uses algorithms to analyze data. In a recent article, for instance, he and his co-authors use data analysis to link certain genes to bipolar disorder. “I often run into patents on statistical methods and mathematical algorithms of the type that I implement,” Klemens says. “I don’t think I violate the ones I’ve seen, but I could be wrong, and I don’t know what else is out there. . . . That’s the thing that really woke me up: by doing pure math, I face legal liability. As far as I know, that’s a first in human history.” Klemens’s personal Web site is here.
In a 2005 book, Mathematics You Can’t Use, Klemens criticizes software patents from an economic and legal perspective, and does so in unusually crystalline, easy-to-understand terms. (For chapter one, see here, and for chapter six, see here.)
The book attracted the attention of the Free Software Foundation, whose president, Richard Stallman, has been railing against software patents since at least 1991, for related, but narrower, reasons: they posed a potentially mortal threat to his brainchild, free software — i.e., software, like Linux, that programmers are able freely to examine, modify, and redistribute without fear that their work will ever be taken out of circulation, declared off-limits, or placed behind a toll-booth by private proprietors. (For a feature story on the tension between patents and free and open software, “Microsoft Takes On the Free World,” see here. Generally speaking, though, software patents present dangerous traps for any programmer. Unlike copyrights, which are difficult to infringe inadvertently, a programmer can easily write software that inadvertently infringes someone else’s patent. That happens whenever the programmer independently comes up with an innovation that, unbeknownst to him, someone else has already staked a claim to. While copyrights are relatively easy to write around — since they protect only particular sequences of words or code — patents present broader, vaguer, and more durable obstacles, since they purport to proprietize implementations of ideas.)
In Klemens, the Free Software Foundation saw a potential ally who, thanks to the breadth of his critique and clarity of his writing, could attract a broader audience than just free and open source programmers. “We came to him,” says Peter Brown, the foundation’s executive director, “and said, we really want to fund your work. And he said yes.”
At the moment, the End Software Patents project is formally an offshoot of the Free Software Foundation. It also enjoys the “sponsorship” — though not monetary support — of the Software Freedom Law Center, which is led by Eben Moglen (an outside lawyer for the FSF and its former general counsel), and of the Public Patent Foundation, an organization led by the center’s legal director Dan Ravicher. The Software Freedom Law Center is itself funded largely by such Linux-supporting corporate patrons as IBM (IBM), Hewlett-Packard (HPQ), Red Hat (RHT), Novell (NOVL), Oracle (ORCL), and Sun Microsystems (JAVA).
To be sure, the goal of abolishing software patents remains a radical position in the sense that very few corporations endorse it. (A surprising exception is pharmaceutical manufacturer Eli Lilly & Co. See here. Evidently Lilly recognizes that poor quality software patents are among the problems spurring the tech industry to seek patent reforms, and it hopes to find of way of placating the tech industry without weakening protections for the drug patents that are the lifeblood of the pharmaceutical industry.)
Though many information technology companies, like IBM, Hewlett-Packard, and Cisco, are publicly championing patent reform, they only favor improving the quality of software patents, not abolishing them. After all, there are estimated to be more than 200,000 active, issued software patents in the United States, and most major tech companies have acquired, at considerable expense, substantial portfolios of them. Companies like Philips Electronics also argue that drawing the line between hardware and software is no longer easy, and that many patents relate to processes that were once accomplished using hardware but are now accomplished using software. Why should the modernization of the medium deprive Philips of recognition for its inventions, its lawyers have argued (albeit, in a slightly different context). See here.
Still, Klemens expects his group to find much common ground with the more moderate IT industry reformers, as well as with those whose main bugaboo is business-methods patents. “Pretty much every argument we make, top to bottom, applies to business methods as well,” Klemens says. In addition, the group’s supporters hope that the major tech players are coming to conclude that the vast number of software patents they have accumulated is part of the problem. “There are so many rights in so many hands,” says Moglen, of the Software Freedom Law Center, “everybody is at risk all the time.”
In any case, even if End Software Patents’ goals are extreme, they are not far-fetched. The U.S. Supreme Court has never ruled on the patentability of software, and at one time the predominant assumption among lawyers was that it could not be, because it amounted to nothing more than mathematical algorithms, which, in turn, were considered nonpatentable “laws of nature.”
That assumption was gradually turned upside down through a series of decisions rendered in the 1990s by the U.S. Court of Appeals for the Federal Circuit, a specialized court that had been set up to handle patent appeals, among other things, in 1984. Those decisions suggested that even if pure software itself was not patentable, software when loaded onto a general-purpose computer created, in effect, a new physical device that could then be patented. Some of the same rulings that opened the door to software patents effectively opened the door to “business method” patents, too.
In the past two years, however, it has become clear to all that the U.S. Supreme Court is extremely unhappy with the patent environment that the Federal Circuit has fostered in the two decades since its creation. In eBay v. MercExchange (May 2006), the Court unanimously junked one longstanding rule of that court, and last term, in KSR International v. Teleflex (April 2007), it unceremoniously dispatched another. (In eBay, the Supreme Court ruled that judges need not always enjoin defendants from infringing, even after a patent-holder has proven its case, and in KSR it made it much easier for judges and patent examiners to invalidate patents due to obviousness.)
For Klemens, however, the most encouraging ruling for his agenda was one that, technically, wasn’t. In LabCorp v. Metabolite Laboratories (June 2006), the Supreme Court had been asked to review the Federal Circuit’s precedents on patentability – the issue that ultimately also determines whether software patents and business-method patents are permissible. After hearing oral argument, the Court punted, deciding that, for technical reasons, it never should have heard the case in the first place. But three justices dissented, writing that they would have overturned the Federal Circuit and invalidated the patent in question, because it clearly amounted to an attempt to patent a nonpatentable “natural phenomenon,” though the phenomenon had been recast in the patent application as a patentable “process.” For that opinion, see here. Klemens contends that software patents amount to much the same thing.
Though only three justices signed the dissent, it does appear that it, in combination with the Supreme Court’s back-of-the-hand treatment of other key Federal Circuit precedents, has led the patent appeals court to engage in some soul-searching. Just two weeks ago, it announced, without having been spurred to do so by the parties, that it would rehear an important patentability case, In re Bilski. (See generally here.) It even asked the parties to brief whether a key ruling it rendered in 1998, State Street Bank & Trust v. Financial Signature Group – one of the pivotal ones greenlighting software and business-method patents — was correctly decided.
“There are test cases all over the place,” observes Klemens. Plainly, his timing is propitious.
Correction: As a commenter points out, in an earlier version I misused the legal term of art “reads on.” Then I did it again in a comment. Regret both errors.
As a software patent attorney, I am often surprised by the number of people that claim that software patents are obvious, yet before the patent no one was practicing the invention. If someone was practicing the invention before the patent, then the patent is invalid and there is no problem. But if no on was practicing the invention or had thought of it, then the patent applicant is doing something new and deserves to be rewarded for pushing technology forward.
The claim that applying a mathematical principle in software is an extension of applying it in hardware and patent should extend in the same way seems superficially valid (as B Moyer’s comment). But, software can also be covered by Copyright. If extension one way is valid, why not the reverse – making copyright apply to hardware?
One problem here is that IP lawyers are trying to make something called Intellectual Property as its own class and not as just a group of classes. They seem to want something that has the duration of trademarks without the limitation of required defense, the protection of patents without the required disclosure rule, and the life+ clause of individual copyright without the limitation of that ‘+’ not applying to work for hire.
All forms of IP without exception have associated limits, by the founder’s clear intent. That should give us pause when considering any legal theorem that helps evade these limits.
It is a waste to spend money and time and other resources on the false existence of that which is based upon a lie.
The lie being that software is of patent-able qualities. Software is not of such qualities.
To use an analogy, the roman numeral system, in comparison to the hindu-arabic decimal system, is far to limiting to have been used to calculate the information we needed for us to have created much of what we have today, including computers. Yet it took 300 years for the more powerful and easier to use decimal system to overcome the wide use of the roman numeral system in mathematics and the elite accountants industry.
The key difference was the zero place holder. And of course it was easy to argue that only a fool would think nothing can have value.
Numbers and mathematics are abstractions and programming is also done using nothing but abstraction. Only here the abstractions used extend beyond math, though many will point out that it boils down to a mathematical algorithm.
What would happen should someone come along with the programming zero, that would make programming easy and powerful enough that most anyone can and would do it as they found need to. No different than using a calculator for any calculation one might need at the moment, or spreadsheet calculation, etc..
Non-novel would become more common, there would be a lot more “skilled in the art” or programming, etc.
But ultimately, software is not of patentable qualities as it is entirely made up of abstract ideas, using the natural law and right of human conscious ability to create not just abstraction but higher and higher levels of abstraction. All this has a physical phenomenon effect upon society (if in doubt, google the “trillion dollar bet” and read the transcript and realize the far reaching effect of this abstraction manipulation of value representation).
What is universally accepted as not being patentable:
three primary:
abstract ideas
Physical phenomenon
natural law
secondary:
mathematical algorithms
What happens when you try and contradict physics an nature? You have problems and even death!
It is of no surprise there are problems being caused with software patenting. It’s predictable in a very calculating manner.
The mathematical zero, how simple it is, yet how empowering it is also to a small finite set of abstractions and their use.
So about the programmers “zero” well its not just for programmers, but rather an identification of a human quality in ability to create and use abstractions. google “Abstraction Physics”.
Can I patent a business model of buying up relatively meaningless patents and then suing productive businesses for their infringement? I have a feeling it would be quite a profitable patent to hold.
Just wanted to comment on the position ‘if we could do it
in hardware, and get a patent, why shouldn’t we be able to get
one for doing it in software?’. On the surface this seems
reasonable, but the arguement is specious. The vast majority
of hardware solutions are being replaced with a routine
piece of dataprocessing. Inventions are supposed to pass the
test of having ‘an inventive step’ — thus being difficult
enough to be worth a patent, because we do not want to patent
the trivial. But when hardware solutions are replaced with
software solutions, that is precisely the barrier that is
crossed. We must not make the mistake of patenting, not
a solution to a problem, but the problem itself.
Laura Creighton
As another commenter has pointed out, a major purpose of the patent system was to increase the knowledge available to the public. If you make an invention, don’t keep it secret. Publish all the details, and you can get a legal monopoly on it for a limited time period.
Whether software patents should be abolished or reformed, it seems clear that they are not currently fulfilling this original purpose. Many software patents are not specific enough to really add anything to the public knowledge. Many are too obvious for the knowledge to be worth the cost (to the public) of the monopoly. And our current patent system pays little heed to ‘limited time’ requirement. Patents last entirely too long, and are far too easy to extend. So in the end, the public is not benefiting at all. The patent holders may benefit, but if we (the public) don’t get access to the invention, why should we (the people) grant that monopoly?
I’ve always considered software CODE (especially web-based) as perhaps an artist would view different types of paint and paint colors. If some inventor comes up with an innovative type of paint, created using some unique set of ingrediants and techniques, then I’d consider that patentable. But if someone paints a picture using, for example, a certain mix of blue and green, that doesn’t seem like a patentable situation. Sure, they could copyright protect their original intellectual property, but you should not be able to patent “blue-green” or a painting of a “tree”.
It’s been ridiculous, seeing patents for things like using double-password fields for creating accounts and logging in. That’s not a unique use of technology, nor innovative. Using double-password fields is nothing more than painting a picture using some available paint colors. The Patent process should clearly understand and work around the common-sense notion that what you do with paint colors or software code is more an issue of copyrights than patents — and even then, standard copyright rules need apply, in that there must be a uniqueness to the content… But then I’m reminded that Paris Hilton got a copyright for “That’s Hot”… Uggg… OK, so maybe the Patent AND Copyright Office need some more guidence…
FYI: It is incorrect to say that an invention “reads on” a patent. In order to infringe patent claims directly, each and every element of the claim in question must be in the allegedly infringing item. It is therefore proper to say that the claim “reads on” the allegedly infringing item, because you take each claim limitation and “place it” on the item to see if the limitation is present. “Reading” an invention on a patent makes no sense from a legal standpoint.
As I see it, the main problem is that patents, which work fine for physical inventions, were applied without modification to software and business methods.
Why would this be a problem? Well, firstly because the average program has *far* more moving parts and interacting modules than the average physical object. Therefore there is *far* more scope for infringement.
Secondly because the most essential basic objects in the physical realm (nuts, bolts, wheels, cogs, plates, clips) and basic techniques to put them together (glueing, welding, soldering, assembling) are all in the public domain. From time to time there emerge improvements to the basic techniques, which can then be duly patented. Such patents typically put the stamp of exclusivity on and *improved* way of doing things but they don’t put *basic* functionality out of reach.
In third place, since software and business methods are a new terrain (and because the USPTO is overwhelmed by patent applications) it’s quite possible to obtain patents on ludicrously obvious things (e.g. the one-click patent) which really hurt everyone in the field. In this sense patents function more like a casino than a sober protection mechanism.
Last but not least, the unsettled nature of the field encourages “patent trolls”: specialised companies that exist only to aquire patents and to sue anyone they can find infringing it. They refrain from actually *using* any patents in order not to become vulnerable to patent suits from others.
Now, it wouldn’t be so bad if one could rely on the USPTO to weed out obvious patents, but they have shown time and again that one cannot.
It wouldn’t be so bad if a well-known basis of common methods were in the public domain and patent-free. Unfortunately no such a basis exists, especially not for user interfaces, web-based functionality, and integration of functionality (e.g. use of a database together with web use).
In this light I concur that we would all be better off without patents on software or business methods. As e.g. is the case in the EU.
No, never. Legal patents are important. But more openess benefits consumers. Here’s a nice example most games console fans will relate to.
http://www.ecbiz.co.uk/wii_topics.php?topic_id=2138
Ant
The perfect case is described in a Groklaw comment found here:
It is one that involves an infringement case where Trend Micro is challenging a company that builds a device that uses ClamAV… and that company, “Barracuda, however, is an Open Invention Network licensee,”… meaning that as part of the network, they can get some help.
See:
Barracuda Networks Asks For Help Finding Prior Art to Defend ClamAV – Updated 3Xs Jan 29, 2008
at
http://www.groklaw.net/article.php?story=20080125135544713
“We have another Pick Your Brain request. This one comes from Barracuda Networks, the email and web security appliances company, but it’s about an attack on ClamAV, the Open Source antivirus product.
Barracuda includes ClamAV in some of its enterprise solutions, although it’s a small part of what Barracuda does. And Trend Micro has accused ClamAV of infringing a patent it owns, #5,623,600. It specifically has named Barracuda Spam Firewall, the Barracuda Web Filter, and the Barracuda IM Firewall as infringing. Trend Micro has been trying to get Barracuda to either pay license royalties for including ClamAV or stop using ClamAV in its products.
Barracuda, however, is an Open Invention Network licensee, and it decided to stand up and defend ClamAV against what it views as a bogus claim. Barracuda believes the patent is questionable, at best, and believes there is prior art to be found, so it decided to defend ClamAV on behalf of the community, and it asks for our help in finding prior art”.
The perfect case! Involves both MATH and software, where it is obvious that the two can not be separated.
Moyer -
“Also, the parallel concept that software should be free will only make sense when software writers agree to work for free.”
Lots of, if not most, free (as in free speech) software is written by fully paid developers. Most software has, by itself, little intrinsic economic value; software is written for a purpose. Quite often, you can get a cheaper and better solution if you share the burden of development and maintenance — even if you also share the benefits of your effort. This is after all also the business model of most closed source software. Free software cuts out the middle man.
By the way, software is copyrighted. That includes free software. Expect retaliation if you break the license.
To be sure, the goal of abolishing software patents remains a radical position in the sense that very few corporations endorse it. (A surprising exception is pharmaceutical manufacturer Eli Lilly & Co. See here.
Two points:
1. Since when does lack of corporate sponsorship define radical? If this where the case, labor unions, OHSA, Clean Air Act would all be “radical”
2. There should be no surprise the pharma will oppose software patents: they have a lot of bright people who can write great code, and they want to use their expertise which is on a higher level than mere knowledge which is why we shouldn’t use the popular term ‘knowledge economy’ when we really mean something different, right?
“Also, the parallel concept that software should be free will only make sense when software writers agree to work for free.”
Wrong definition of free. The Free Software Foundation does not claim that all software should cost nothing, but that the user should not lose certain important rights simply because Business X decided to withhold them; rights like the ability to fix bugs and add features to existing programs. It’s not free in price, it’s free in the sense that you are free to make your own adjustments and so on.
I see the patent system as a social invention with an initial simple purpose to provide financial incentive to individuals or group to commit intellectual energy toward the creation of solutions to problems that return value to our society. When looking to establish the clear boundary as to where a patent should or should not be granted under government enforced legal protection as in the case of software/business method should we not consider the observed effectiveness of the law in practice.
When we see the surge in patent applications and grants in a specific area such as software it is hard to envision that this activity is working toward the objective/spirit of the patent system or the benefit of society. This is especially ture if the government is not prepared to enforce its own rules and leave patent scrutiny to the courts. This I believe violates the spirit of the patent system and for sure severely limits access to the patent system to only those with deep pockets.
It’s a ludicrous argument to say that someone “doing pure math” will “face legal liability.” Simply not true; not even true under the most liberal interpretations of Section 101.
Now, it is true that you can patent something that implements pure math, but the patent protection does not extend to the math itself. Bioinformatics is a good example where certain implementations of mathematical functions have seen patent protection. Doing the pure math might “read on” part of the claim, but to infringe you need to read on every element of a claim.
This idea isn’t new to computers or business methods. Most machines are basically functional implementations of some mathematical formula.
Moreover, few people would doubt the patentability of moving an otherwise natural process into its mechanical form (read business-process as machine).
The real problem is that most software/business method patents are simply invalid, but invalidating them is just too expensive. And, anyone that’s ever been engaged in patent litigation will know, invalidating patents is tough work even with an open ended budget and unlimited time. So it should be no surprise that a patent examiner with limited time, limited budget, and an incentive to dispose of a case is likely to grant a patent.
Dave–
A software program, like a version of Word, say, will be copyrighted. That prevents us from making a complete copy of it without the Microsoft’s permission.
But you can also patent inventions which are implemented through software. So a complex program like Word probably “reads upon” dozens of software patents, not all of which are owned by Microsoft. Like all proprietary software companies, Microsoft then enters into licensing and “cross-licensing” in an effort to clear the rights to those patents, but it also often ends up having to litigate, too.
First of all, the patenting of naturally occurring genes seems much more problematic. That aside, let’s take the basic arithmetic function of division. That 100/8=12.5 is a natural law. The long-division algorithm we learned in school to calculate that may seem like a natural phenomenon simply because we learned it in school and it’s so prevalent, but some human actually came up with that way back when. Might that have been considered intellectual property worth protecting if the business context had been like it is now? The first machine that could do division calculations in hardware must certainly have been patented.
So you have the basic natural law, a human-derived algorithm for calculating the law, one or more hardware implementations, and now one or more software implementations. It seems arbitrary that of these, only hardware versions would be eligible for patent.
Also, the parallel concept that software should be free will only make sense when software writers agree to work for free.
Just a note…. Sun supports Solaris, not necessarily Linux. See http://www.opensolaris.org for more info.
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This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist.
This is a good article on software patent issues. I’m convinced that it’s time to eliminate the software patent process, and simply use the existing copyright and trademark protection for software. See my article on blog.startupprofessionals.com titled “Software Patents: Time for a Change” for specifics.
Marty Zwilling, Founder & CEO, Startup Professionals, Inc.