Shall we end software patents? Please?

i-5720602d36f6bac8fc7cf76a321f276d-scream_red200.jpgESP is a new organization formed for the purpose of putting an end to the madness. The madness, of course, is the new corporate business model of patenting something utterly absurd, such as "click on something and something happens" or "computers can store data" or "tell the user there has been an error" ... then you get a team of lawyers in expensive suits to take down all of your competitors by suing them for having the audacity to steal your ideas.

ESP will be the ACLU of the software world. I hope they have a lot of money.

Here is their press release, in part:

Boston, Mass., February 28, 2008 - End Software Patents, a project working toward the elimination of software patents, was launched today. The ESP project will initially focus on two approaches: 1) assisting corporations that choose to challenge software patents in the courts and at the U.S. Patent and Trademark Office (USPTO) on the basis that patents for software and designs with no physically innovative step have no legal validity, and 2) public education aimed at passing laws to protect software from patent law.

The End Software Patents project believes the current problems with the U.S. patent system are caused by the elimination of restrictions on what is patentable, rather than the details of processing and examination. For example, virtually every patent troll today is holding patents in software and business methods; there are no pharmaceutical patent trolls.

"Software patents endanger both software developers and businesses, ironically stifling the very innovation that the U.S. patent system was intended to foster," said Ben Klemens, executive director of End Software Patents. "With statements from the Supreme Court and the USPTO supporting our position, we can use our court system to restore our patent system to its original state without delay."

In a separate announcement today, ESP released its first report on the current state of software and business method patents. The report covers the economic impact of software patents, including the $30.4 billion* in costs incurred by U.S. businesses each year by software patent litigation. It also covers the expansion of software patent infringement suits to threaten general business, and recent judiciary statements and rulings that question the patentability of software - including relevant U.S. Supreme Court statements and the February 2008 Court of Appeals for the Federal Circuit (CAFC) announcement that they will reexamine the scope of what is patentable. These statements and rulings provide new arguments and authority to those who face lawsuits based on software or business method patents.

"Software patents are a burden on U.S. businesses and innovation, and the debate on the patentability of software will have a profound impact on the software industry over the next 20 years," said Brad Feld, Managing Director at Foundry Group. Feld added, "I am pleased to see that the End Software Patents project has formed to directly address the problem. These are smart people who know a lot about patents, and I have every expectation that they will help achieve change."


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"With statements from the Supreme Court and the USPTO supporting our position, we can use our court system to restore our patent system to its original state without delay."

Wow, got to love their optimism! (heads off to link to them...)

As the holder of four software patents - two sole and two shared - I'd like to add a bit of perspective. When I was at EMC, they had a bounty for patents - $2K on filing, $5K total if granted IIRC - which was kind of nice even though I only got to collect on one of the shared patents before I left. Even nicer was the validation that my work met a certain standard of both quality and novelty, at least in the eyes of the lawyers if not the blind USPTO. In the absence of a degree or a string of academic papers, that's pretty handy.

Nonetheless, I'd prefer not to have any of those patents. Only one of them is really anything to be proud of. One is just so specific to the environment in which it was developed that it's kind of useless. More bothersome are the two that I feel are pretty straightforward extensions of well-known prior art. Obviously EMC disagrees, and there's the problem. Should they ever decide to litigate on the basis of those two, I might get drawn in. I'd have a fiduciary duty, even as an ex-employee, to assist their case, but if someone were to push on the issue of that prior art I could not in good conscience claim it's inapplicable. That's a bad position to be in, both morally and legally. As an inventor and not owner of patents, the possibility of future litigation is a big Sword of Damocles overshadowing any benefit or satisfaction I get from those patents.

Before continuing, I just have to add something I always add whenever software patents are discussed: beware of interpreting legal documents in common-sense or technical terms. What matters in a patent is the claims, not the description, and many words (including "obvious") have legal meanings that might not be what you're used to. There are a great many truly obvious inventions that have been patented when they shouldn't have been, but there are also many that people ignorantly characterize as obvious when they haven't even looked at the claims and wouldn't know how to interpret them anyway. You have to know, in a legal as well as a technical sense, what ideas the patent actually seeks to protect before you can make any statements about the nature of those ideas including whether they're novel or obvious, and many people just don't seem to bother.

That said, I think software patents are bad for inventors and bad for the process of innovation itself. The practice of big companies building up a huge patent "war chest" to protect against lawsuits over their own deliberate theft of others' intellectual property (including trade secrets) is awfully cynical. IP laws are either enforceable or (preferably) not; they shouldn't be enforceable only against small companies and not against big ones who just happen to have other unrelated IP on the books. The way that investors base so much of a startup's valuation on its patent portfolio totally distorts the venture-capital market leading to drastic misallocation of funds. The only people who benefit from any of this are amoral large companies and lawyers. The public sure doesn't.