Posted on 11/01/2007 6:55:29 AM PDT by ShadowAce
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.
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."
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."
--I see they do mention that little matter of Congress, down the page--
what do you do when linux and openoffice can’t compete with microsoft? get a lawyer!
So if you think software is bad now, what will become of it when there is no money do develop a produce. We will be going back to 3.0 to get something that will work.
Abolish software patents? I have a better idea. How about Linux develops a superior product that can out-compete Microsoft?
Be able to patent algorithms is BS. They should look at the end result, not how they got there.
This isn’t about Microsoft vs. Linux. The patent office is letting people patent absurdly obvious and commonly used ways of doing things because they’re too stupid to understand math and software.
Now I’m not saying that a truly innovative way of solving a problem shouldn’t be patentable, so I have mixed feelings about the abolition of software patents per se. But, the system as applied today is completely out of control.
Perhaps the legal case these guys are trying to advance will make legislators correct the situation without throwing out the entire concept of software patents.
this is all about getting rid of property rights and making everything free. we’re just going to end up with crappy software that few want to use
To me, normal software development absent something truly unusual, should be treated more like a trade secret than something patentable. No one can require you to disclose your code publicly, and if an employee with access to it divulges it to a competitor, you can sue him and them to recover lost revenue. But if in fact the idea is sufficiently obvious that the competitor comes up with the same idea on his own, there’s nothing you can do about it (and some evidence that maybe it wasn’t a patentable idea).
I see your concern but leaving it the way it is isn’t a good idea either. Probably tbe best solution would be for legislatures to limit the scope of what kind of steps in software can be patented. Of course, realistically, not being software guys, they’d probably make a hash of it too.
oh I’m totally in favor of reform. I just don’t want FSF to have any role
Yeah, but this time we’ll fit it. REally!
Well, I can understand that. Stallman is kind of a putz,
you make it sound as if improvements was a bad thing
I would not mind going back to ms dos. It was small and easy to use.
About time. Bump
Software was advancing at quite a rapid pace before software patents ever existed. We are at the time when software patents hurt innovation in software because for almost every genius idea a developer implements, someone has written a vague, overly-broad paper-only patent that covers it.
BTW, did you know that doubly-linked lists were recently patented? They've only existed for 50 years.
I know first hand about software patents and the damage they can do. I participated on the winning side of an infringement case that cost our side several million to defend, and who knows how much the plantifs wasted. Just like the conventional wisdom says, only the lawyers won.
You have no idea what you're talking about. Until only a few years ago software wasn't patentable at all. Most of the killer apps we have today like word processing, spreadsheets, GUI operating systems were originally done with zero patents.
Without everyone worrying about what they could, or could not do, software advanced very rapidly. Patents gork up innovation, and the USPTO allows patents on terribly obvious stuff. I've even seen a patent approved that was a transparent re-write of a patent that was expiring. It even referenced the original patent, but was still allowed.
See my post 22. What I didn't mention was that the "patent" was on a method that was quite obvious. The people who sued us had been sued by a third party previously that had a pre-dating patent that was nearly identical to their product, yet they won the case. They still sued us, even though our software was quite different. We wasted months of man-hours over 5 years and millions in legal fees that eventually touched on several patents. The result was no one got paid much money, and the parties have basically called a truce.
Only the lawyers won.
you are talking about reform. the fsf talking about abolition. They don’t believe in intellectual property rights. Everything would be free and they would be able to copy anything they want from Microsoft.
I occasionally boot DOS from floppy and run some of my old DOS programs on my 3GHz Pentium 4’s...
Not only are the programs small - they really scream!
We really could do without so much of what the GUI programs give us.
What fool issued a patent about doubly linked lists?
This stupidity has gone way, way too far now.
You obviously didn't read the link. They're not talking about "free software" without copyrights. They're talking about software patents, specifically "soft patents" that are disruptive to the industry, another horse entirely.
I always say that you could leave 100 legislators locked in a room with 100 cases of food and 100 can openers, and they'd starve to death because they couldn't master the technology. Legislators (almost always former lawyers) should NOT make laws about things they don't understand. Like economic policy, for instance.
How about we try improving the patent process instead?
Signed,
The Intellectual Property Industry.
On your basis, I can’t patent a more effective drug, because the result is all that matters, and not the method of action.
As for algorithms, that’s machinery on paper as far as I’m concerned, and should be patentable.
Better we hire qualified patent judges than abolishing IP patents.
This is a grab by the legion of smelly, naked programmers out there crying in their Jolt about how evil Microsoft is and how superior Linux is.
At least MS has shareholders. Somebody comes in and ‘customizes’ your system to a fair-thee-well and decides to double your rates. You are just swapping one slavedriver for another in my book.
Not only are the programs small - they really scream!
We really could do without so much of what the GUI programs give us.
I bet there are few viruses to worry about. If I could only run a modem and get a few sites.
Communism never works.
That's the guiding principle of our legal system.
There is a distinct difference between a "legal system" and a "justice system", and the former is what exists in this country.
First, my rant: "IP patents" means nothing. "Intellectual property" is a catch-all term that encompasses several different concepts operating under several different laws. It obfuscates the issue, as we've seen in this very thread.
The issue at hand is patents, period.
That said, we do need better qualified patent examiners with expertise in the area. Whoever allowed doubly-linked lists (something learned early on in a CS degree) to be patented has no business dealing with a software patent.
Then instead of random judges all over the country who can be wowed by flashy lawyers, we need to have specific patent courts where the judges actually have a working knowledge of the various fields patents can be issued in.
Then they all need specific direction from law or the Supreme Court that the bar for obviousness is pretty high, and only truly innovative works can be patented.
Then you make a perfect constitutional case. As we see today, the vast majority of software patents are either used defensively (not really used, just to keep others from suing them) or by those not actually using the patent to extort money from people who actually built stuff.
The only authority for patents is the Constitution, for the explicitly stated purpose of promoting the progress of the arts and sciences. Software patents are obviously not promoting, but rather hindering, the computer sciences. Therefore they have no constitutional authority, therefore they shouldn't exist.
I'll second that.
In our case, the patent holder sued us in an obvious attempt to put us completely out of business. We "won". But because the whole thing was complicated with several patents involved in both directions it ended up with a few token bucks coming our way and an agreement to end the war.
The FSF is run by Richard Stallman, a green party leftist moonbat whose only belief in traditional “copyright” is as a mechanism to perform what he calls “copyleft”, as fully defined in his communistic mantra called the “GNU Manifesto”. He claims his “ultimate goal” is “to make proprietary software obsolete”, just as the other poster mentioned. Do a search on youtube for Stallman and Cuba and you’ll see the freak in action.
Then I guess it's a good thing that the FSF isn't running this effort.
Agreed. Before software patents we only had copyrights and they worked quite well. IMO software patents came about as a result of software company lawyers looking for something to justify their existance.
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.
Stallman isn't running the project, he's merely signed on as part of a coalition. I don't care if he's a moonbat and wants free software or not. The project at hand is ending software patents, not copyrights, and I think that policy would dramatically help the industry.
Unless, of course, you're a patent attorney specializing in software. In which case I hope you find another line of work, right after the last software patent lawsuit is settled, when we can resume the job of advancing the industry instead of playing expensive games of legal gotcha.
Apparently you don't, but I do. The patent process may in fact need review and improvement, but I'll never sign on with anything that completely removes the originator's rights from intellectual property like Stallman wants, and with good reason.
Well that's good, because Stillman isn't in charge of this project. That he's supporting it, obviously because it moves the ball in the direction he wants, is irrelevant. Eliminating software patents is a good idea, and I support this project despite Stillman hanging around it.
It's "Stallman", and he doesn't deserve any support here or anywhere in his quest to destroy individual ownership of sofftware technology.
Eliminating software patents is a good idea
I don't believe it is. The process could use improvement, especially with regard to frivolous patents, but copyright alone is insufficient to protect modern software technology.
Go ahead.
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