Archive for the ‘Uncategorized’ Category

About Microsoft’s patent licence for .NET core

Wednesday, November 12th, 2014

Because Microsoft has made it part of their core business to extract patent royalties from distributors of free software (particularly on smartphones), I decided to take a look at the patent safety offered by the licence of the parts of their .NET framework that they’re releasing as free software:

The first limit is that you’re only protected if you’re distributing the code “as part of either a .NET Runtime or as part of any application designed to run on a .NET Runtime“. So if you add any of the code to another project, then you lose protection and MS reserves the right to use their patents against you.

Secondly, the protection only applies to a “compliant implementation” of .NET. So if you want to remove some parts and make a streamlined framework for embedded devices, then your implementation won’t be compliant and the protection doesn’t apply to you.

Form and context

Another question is about the impact of Microsoft calling this a “personal promise” instead of a “licence”: Can Microsoft sell the patents to a troll and watch the troll sue everyone? Probably not. This has been tested in court once that I’m aware of. It’s the 2012 “in re Spansion” case in the USA and the judge ruled that a promise is the same as a licence. (See The value of promises and estoppel defences)

And last comes the question of an implicit patent licence. Since Microsoft have released the software under a free software licence (the MIT/X11 licence), giving all users the freedoms to use, study, improve, and share the software, have they thus implicitly promised not to sue the users for doing this things? As far as I know, there’s no case law on this. I’ve heard that this idea might work in the USA but might not work in the UK, but I got it from an unreliable source and I don’t know his sources. In short, it’s not something you can rely on, but if you’re accused of patent infringement it might be worth a try.

How is this different to the GPL?

Code distributed under the GNU GPLv3, comes with a patent grant which basically says the contributors can’t use their patents against the users for exercising the freedoms granted in the licence:

(section 11)

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor’s essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.


This patent licence looks fine for users of the code published by Microsoft, but its protections disappear very quickly for those who wish to modify or re-use the code.

US Supreme Court reining in software patents

Friday, June 20th, 2014

(For analysis and info links, see the wiki page Alice v. CLS Bank.)

“Reining in”. It wasn’t easy to find a term that was both accurate and also vague enough to describe what just happened. The US Supreme Court today published its decision on Alice v. CLS Bank. It’s too early to say exactly what the effects will be, but the news is certainly all good: The Court in no way extended patentability nor did it affirm patentability for any sub-category of software; and a certain category of software patents has definitely been invalidated.

It’ll take a few days to produce a thorough analysis of this (I’ll post again here next week, and in the mean time check the wiki page Alice v. CLS) but early optimism seems to be justified by the fact that Gene Quinn is hopping mad. Quinn’s a patent lawyer and he’s always optimistic about being able to patent software, so I felt good about Alice v. CLS when I saw his reaction:

the Supreme Court decision in Alice will render many hundreds of thousands of software patents completely useless. … On first read I don’t see how any software patent claims written as method or systems claims can survive challenge. … What this means is that companies like Apple, IBM, Microsoft, Google and others have had the value of their patent portfolios nearly completely erased today. … getting a software patent will be much more difficult than it ever has been. … Most already issued software patents will not be able to be saved.

I think Quinn’s going too far, but for once I hope I’m wrong and he’s right! In any case, it’s clear that this ruling destroys some restrictions on software development. There is cause to celebrate.

The Court didn’t endorse any software patents

I read one or two comments saying that this ruling invalidates certain categories of software but suggests that the Court would uphold other categories of software patents. But the Court didn’t say that. Here’s what the Court said:

Viewed as a whole, these method claims simply recite the concept of intermediated settlement as performed by a generic computer. They do not, for example, purport to improve the functioning of the computer itself or…

Some people read this as a contrast:

  • Alice’s claims are invalid.
  • In contrast, if they improved the functioning of a computer they would be valid.

That’s wrong because the Court didn’t say that anything in particular is or would be patentable. The Court said that the Alice category (i.e. abstract idea + “on a computer”) is invalid, and it said there is another category (“improving the functioning of a computer”) which is not part of the Alice category. They never comment on the patentability of that other category. The more accurate reading of this contrast is:

  • Today’s ruling finds claims such as Alice’s invalid.
  • In contrast, today’s ruling does not pass comment on claims that improve the functioning of a computer.

So, why then did the Court distinguish these two categories? Maybe it’s that Justice Thomas couldn’t get agreement on the issue, so he decided to leave out. Maybe the Court thought it was simply beyond the scope of this particular case. Pessimists assume that the court made two categories because they intend one to be patentable and the other not, but if that’s what the Court wanted, they could have said so directly (“B is valid”) instead of a double negative (“A is invalid; B is not A”). No one knows if the court will uphold or invalidate that other category of patents in a future ruling, but this ruling doesn’t uphold them.

Now, I’m not a highly-qualified reader of the US Supreme Court, but if the pessimist interpretation was right then I’d expect to find patent lawyer blogs claiming partial victory or at least a consolation prize that a sub-category of software patents are for the first time validated by the Supreme Court. The patent lawyers aren’t saying that, so they seem to interpret it as I have.

Is Soverain Software a patent troll? Yes

Friday, April 4th, 2014

I was reading about the US Supreme Court declining to hear Soverain v. Newegg when I saw someone ask if Soverain Software was a patent troll.

I started with Wikipedia’s article on Soverain Software. I’m a big Wikipedia fan, but articles about little-known companies run the risk of getting more attention from the company’s friends than from the wider Wikipedia community, so I decided to verify the statements. The article says:

Soverain’s enterprise software product Transact has been in use for nearly 18 years, and has been used by over 1,000 customers in over 25 countries, including companies such as Time-Warner, AT&T, Sony, Disney, BusinessWeek and Reuters.

This made me raise two eyebrows. The left one because “software product” could be a weasel word for patent licences, then the right one because those numbers are imprecise and written in a promotional, un-Wikipedia style. I check the source, and it’s a Gene Quinn article on IP Watchdog. Now, I read Gene’s writings sometimes, and there can be useful pointers in there, but he’s very pro-patent. I wouldn’t rely on him to check figures which are being used to justify the actions of someone asserting their patent rights.

So I go to Soverain Software’s own website. They seem to focus more on their patents than on their software, but let’s not jump to conclusions. I decide to check, to see what their website looked like 18 years ago when people started using their software. Oh. The website didn’t exist 18 years ago. It only exists since September 2003, and until December 2003 it just displayed an “under construction” image. Ok, slow start for a pioneering e-commerce innovator, but let’s keep looking.

In January 2004 they put text and images on their website, and here’s what the intro paragraph says: “Soverain’s products have been deployed to customers in over 25 countries globally“. Hmm, same number, and note how their statements from 2014 and 2004 both use the past tense.

Some more searching leads me to Amazon’s testimony at a 2006 US Congressional subcommittee on the topic “Patent trolls: fact or fiction?“:

And, last year, for $40 million, we settled with the owner of a host of E-commerce patents, nearly two dozen of which were purchased for less than $2 million. Soverain had alleged that a few of these patents tread on our use of the virtual shopping cart and other features on our Web site.

In 2007, Amazon was on Soverain Software’s list of “licensees”. I wonder if the others on the list were also targets of infringement allegations (the others were, Inc., Gap, Inc., Intershop Communications, Inc., and Johnson & Johnson).

So where did Soverain buy these patents? They bought them in 2003 from Divine, Inc., who went broke after trying to licence patents they’d bought in 2001 from Open Market, which as an e-commerce company that went broke when the dot-com bubble burst.

But, is Soverain Software a software company? Their website boasted a version 5 back in 2004, then 6, then 6.5, now it’s version 9. That makes it look like someone’s developing software, right? Ok, I’m convinced! I’ll buy it! Oh. Their products and services pages mention no prices, no phone number, no email address… Wait a second! This pioneering e-commerce company’s products can’t be bought via their website!? Of course, their patents page has link for IP Inquiries, with an address and email. But their software products and services pages don’t. Why didn’t I notice that an hour ago!? I could have skipped writing this article. Well, at least I got to prove to myself that I was right to be sceptical of Gene Quinn’s figures.

Case closed. Soverain Software is not a software company. They don’t make any effort to sell software. They are a company that bought patents at rock bottom prices during bankruptcy and has spent ten years using these to attack software and web service companies. That’s a patent troll, clear as day.


I had one last piece of evidence, but I put it aside because I don’t know how to confirm it. When Soverain Software (unsuccessfully) petitioned the US Supreme Court to review the Soverain v. Newegg ruling, the parties submitted amicus briefs (as did three third-parties). In Newegg’s brief, they say:

In 2001, Open Market, unable to succeed, sold its assets to Divine, Inc. (“Divine”), which, despite its efforts to license the patents-in-suit itself, went out of business and filed for bankruptcy. A1854-55, A13002. Petitioner’s limited liability corporation was then specifically created to acquire the Open Market assets from Divine in 2003, including all rights to the patents-in-suit and the Transact software product. A1822.

Petitioner generates tens of millions of dollars in income solely through patent litigation settlements and some de minimis residual maintenance and service fees from a few legacy Transact customers that Open Market originally licensed. A1828-30, A1848-50, A1911-12. Petitioner has not licensed a single new Transact customer. A1853.

Despite the source being biased, I find this credible because lying to the Supreme Court in an amicus brief is not smart. But I put it aside because I don’t know where to check those “A1853″ references. Anyone?

Help needed documenting events of May 2013

Thursday, May 23rd, 2013

May brought exceptionally good pieces of news for campaigns against software patents, but I’m stuck studying for law exams. If anyone would like to help, it would be great to have better write-ups about these recent events on the ESP wiki:

Update: There’s also a page for documenting part 2 of When Patents Attack!.

USA: Court of Appeals invalidates many software patents!

  • What: The Court of Appeals (CAFC) created software patents in the 80s and upheld them until now. Suddenly they’ve changed their minds, but the exact reasons and scope of the ruling are hard to see.
  • Where to document it: CLS Bank v. Alice ruling by US CAFC on 8 May 2013
  • TODO: Read the articles linked at the bottom of that wiki page and add notes and excerpts from the ruling itself about what the judges agreed on and what arguments they found important. It would also be useful to add links to other articles.

New Zealand: New legislative proposal to abolish software patents!

  • What: The latest version of New Zealands proposed patent legislation includes an exclusion of software patents, but there are questions about whether the text is strong enough to resist the army of patent lawyers that will look for loopholes.
  • Where to document it: New Zealand Patents Bill 235 (section 9 May 2013)
  • TODO: Make suggestions for how the proposed text could be improved and find out what the next steps are in the process and who currently is in a position to change the text.

Germany: Parliamentary committees considering anti-software patents petition

  • What: The German parliament has sent a draft motion condemning software patents to three subcommittees for discussion.
  • Where to document it: German parliament petition against software patents
  • TODO: Check the progress of this; check the accuracy of my summary of what’s happening (my German is weak); and figure out what people can do to influence this.

Google’s VP8 patent protection deal

  • What: Google published information about the protection they’re getting against the patents of MPEG-LA, and how much they will protect users of the VP8, VP9, and WebM video formats.
  • Where to document it: WebM and VP8 (section Google’s deals with MPEG LA)
  • TODO: Review the draft licence in the May 2013 annoucement section and note the important points that help decide if this is enough to make the WebM format safe from MPEG LA.

Subtitle translations: Persian and French

Lastly, two volunteers have recently worked to translate the Patent Absurdity subtitles into Persian, and to improve the French subtitles. If anyone could help reviewing them, please give them a try and add a note if they work fine or if you find any issues:

What can we ask of the USPTO?

Wednesday, January 23rd, 2013

The USPTO is organising roundtables to get suggestions from software developers. Below are my initial thoughts on what changes we can ask for. If you have other suggestions, please contribute to this wiki page:

A big problem with this sort of hearing is that the audience isn’t specialised in knowing how the USPTO can influence patent policy, and which court rulings bind the USPTO in which ways. So there will be a lot of simply invalid suggestions (which should go to Congress or the courts). Let’s try to reduce that waste.

The other problem is that because the patent office’s role is so limited, we can’t ask for much.

Here’s what I think we can usefully ask for:

  1. I’d start by saying that they don’t need to ask the software community. Judges consistantly invalidate software patents, much more than non-software patents, as shown in this study:

    Surely the USPTO can read those rulings to see what they’re doing wrong. For a suggestion to be valid, a proposed change has to be compatible with the courts’ case law and be within the USPTO’s scope of competence. Software developers don’t know these things, so it’s very hard to come up with valid suggestions, but judges are trained and experienced in exactly this, and they write a legal reasoning each time they invalidate a patent, so the answer is there in their rulings.

  2. Second, I’d highlight that the Supreme Court is over the district courts and the CAFC, and that the USPTO should apply the Supreme Court’s Mayo ruling to remove the computer or storage medium from applications when they’re examining them. Putting software on a computer is a trivial and expected step that shouldn’t contribute to patentability.
  3. Third (but I don’t know how much leeway the USPTO has on this), instruct examiners to send unclear applications back to applicants asking for a clearer description using more words that have definitions in the industry. This should “improve clarity of claim boundaries” so that hardware patents (a “point of sale”) stop spilling over into software (online shop).
  4. Finally, I’d point out their ongoing lack of resources and that raising or lowering standards doesn’t reduce the amount of examination necessary, but narrowing the field of patentable subject would. So, while the USPTO mightn’t have the power to determine what is legally patentable, I’d recommend not being afraid of proposals to remove a sector of any field from eligibility (and we know that software is the only sector for which exclusion is seriously discussed). If this happens, the USPTO will have more resources for improving evaluation quality in the remaining patentable sectors. By removing the least-loved sector, this will also reduce the amount of negative press about patents and curb the increasing discontent with the patent system in general. Everyone will be happier.

Probably not worthwhile:

  • Ask them to change the fees structure so that they’re no longer paid for what they accept. Problem is, this means reforming the USPTO across the board, which means no deal until pharma a few other other patent-intensive sectors are sure that they win something and lose nothing. (Just look at how much time and watering-down was required to get the America Invents act passed.)

Definitely not wanted:

  • Patent applications have to include a source code example. This would just add copyright problems on top of existing problems.

Those are my initial thoughts. Please add yours here:

What’s wrong with the EU unitary patent?

Wednesday, December 12th, 2012

The European Parliament approving the unitary patent is bad because:

  1. Patents become a lot cheaper, which means more patents, which means more restrictions and litigation. People can now get one patent that’s valid in 25 countries (the EU minus Spain and Italy), instead of making 25 separate applications involving many translations. If patents were a good thing, then efficiency would be welcome, but in domains such as software, patents are an affliction.
  2. Litigation becomes more profitable. Patent holders can now go to a single European court to ask for payment for infringements in multiple countries instead of having to go to each national court. The inefficiency of the old system was what saved Europe from masses of litigation. Patent holders preferred to litigate in the USA. Now they’ll litigate and racketeer in Europe too.
  3. There’s also the risk that this new court will be made up of judges who are “experts” in patents, i.e. have a background in the patent industry and will bring a strong pro-patent bias, thus entrenching software patents in Europe just like was done in 1982 in the USA when they created the pro-patent appeals court, the CAFC.
  4. (I’ll have to read the details on this last point, but I hope the European Parliament hasn’t given away its power to legislate on what is and isn’t patentable. Anti-software-patent legislation at the EU level is now acutely more necessary.)

One remaining ray of hope is that the European Court of Justice might throw it out. There’s an obvious democratic problem: unitary patents will only be published in English, and if you use a patented idea without permission, you’ve broken the law. So, if you don’t speak English, how do you avoid breaking the law?


That’s how stupid this idea is. The European Parliament’s vote is an act of desparation, but for what? Why was there so much pressure to get this done? As IP lawyer Alison Crofts wrote in 2007, back when the proposal was called the EPLA:

“The industry-based driving force behind the EPLA comes from the pro-software patent group as a way of ensuring that their software or potential software patents are fully enforceable across Europe.”

More information:

Good “End Software Patents” video – not by us

Wednesday, November 28th, 2012

There’s a good anti-software-patent video on YouTube (in WebM video format):

Despite the name it has no connection to us but it’s a very good 2 minute video explaining some of the problems of software patents.

For anyone who’s thinking of making a similar video, here are some ideas:

  • Software developers that reuse ideas shouldn’t be portrayed as “immitators”. Reuse of ideas is often essential for compatibility. A person developing a new word processor might find the Microsoft Word format ridiculous but if their software can’t read and write the documents that exist then it won’t be a useful word processor so they’re required to reuse certain ideas.
  • In another situation, reuse of patented ideas is also often accidental, even unavoidable. With hundreds of thousands of software patents, it’s impossible to check if all the ideas in your software haven’t been patented. So this isn’t immitation either.
  • The GNU project and the free software movement have been the most outspoken campaigners against software patents, so it’s unfortunate that the video only talks about “Linux” (instead of GNU/Linux) and “open source”.
  • Software development shouldn’t be presented as a “market”. For pharmaceutical development, we can talk of “markets” because the market is the only system that mass produces pharmaceuticals. For software, crucial software development is done by hobbyists, user groups, and other non-market groups. A software market does exist, and we should remove economic barriers to entering that market, but we also have to remove economic and legal barriers which block non-market groups from developing software. (See: Why software is different)
  • The airplane and Newton examples at the end are good, but it would be better to avoid likening software patent problems to hardware patent problems. Hardware is more like pharmaceuticals. Mass production of airplanes is only done by markets (hobbyists exist but patent holders have little reason to attack people that only make a tiny number of airplanes). Highlighting problems with patents in general is good to make people question the foundation of the patent system, but harm in the airplane industry doesn’t necessarily make the point that patents are bad for software.
  • And one minor point: it’s not necessary to wholly endorse pharmaceutical patents. Maybe some changes in pharmaceutical patents would also be good for society. Maybe the 20 year term is too long? Too short? Maybe the term should begin when the medicine has been approved for public use? Maybe patents are harming the health system because they give pharmaceutical companies an incentive to push new, patented, profitable medication even in cases where existing, non-patented medicine is better? I’m no expert on pharmaceuticals, so I wouldn’t feel confident in giving pharmaceutical patents a blanket endorsement, especially without mentioning that the effects differ between rich and poor countries.

Stallman: completely shielding software instead of exempting it

Tuesday, November 6th, 2012

Richard Stallman’s latest article on software patents suggests that instead of a law excluding software from patentability, we need a law saying “that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.

This would achieve the same goal as a software exception but avoids the difficult problem of drafting a text which classifies patents as “software” or “non-software”.

For an example of how this is workable, he refers to 35 U.S.C. Section 287 (c), which was written in 1996 to shield surgeons from patent risks.

If you have ideas for how this could work best, please feel free to write them on the relevant wiki page:

Software patents coming to EU via unitary patent

Thursday, September 20th, 2012

The unitary patent proposal has been floating about for years, under various names, but it seems to now be getting dangerous. I don’t know all the details of the current situation and I haven’t found a satisfying overview, so I’ll point you to a list of pages and then discuss some general aspects that seem to still be true from when I previously worked on this.

[UPDATE: There now more info at]


The best three links come from April, the organisation most active on this:

They also have a useful list of links in the "additional resources" section at the end of

My own efforts, which I’ll have to update and expand, are on the ESP wiki:

General aspects

In general, the unitary patent and the Unified Patent Court are two parts of a project from the European Commission which will have three effects:

First, it creates an EU court which is controlled by the European Patent Office (EPO) and will approve the EPO’s legally invalid software patents.

Second, it increases the power of the EPO by rubber stamping the EPO’s patents, without the EU even having any control over the EPO.

And third, it makes litigation faster, cheaper, and more lucrative by allowing patent holders to seek damages and blocks for all participating countries. More efficient litigation is promoted by the European Commission as a good thing. For some fields of product development this might even be true (I don’t know), but for software this will bring EU into the same mess as the USA. The EU already has a lot of software patents, but the costliness of the patent system discourages litigation.

I’ll try to write an explanation of the details in the coming weeks.

The solution to Posner’s patent problem

Thursday, July 19th, 2012

Richard Posner, a very influential US judge, has written an article about the current patent system’s problems and their causes. The article provides useful support for many software patent abolition arguments. He unfortunately closes with suggestions which are unhelpful or even counter-productive (with the exception of his suggestion of a shorter duration for some domains, which I discuss below). In particular, his suggestion of giving more resources and power to the patent office would be a catastrophe. What we really need is to rein in the patent offices and remove their power to grant software patents. (And this would have the side-effect of reducing their workload and thus easing their resource problems.) Here’s his article: Why There Are Too Many Patents in America.

It’s a pity. The build-up of his argument seemed to be leading straight to a conclusion that patents shouldn’t be granted in domains where research and development are cheap (compared to pharmaceuticals):

the need for patent protection in order to provide incentives for innovation varies greatly across industries. [...] Most industries could get along fine without patent protection. [...] I would lay particular stress on the cost of invention. [ industries where...] the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant.

Framing the discussion in terms of "industries" also propagates a bias by ignoring the problems caused to developers who are not part of the relevant industry. While it’s true that large scale production of pharmaceuticals and cars is exclusively done by industries, software is developed by a mix of industry, hobbyists, user communities and people in other domains who develop software incidentally as a means to getting their other work done. And it’s the non-"industry" developers who are most vulnerable when attacked by a team of lawyers. A good use of "industry" could be: patents should only exist in domains where production is exclusively an activity of industry.

The first measure Posner mentions for alleviating the problem is to reduce the patent term for inventors in certain industries. If he means reducing the term to 3 or 5 years for patents on software, then that could indeed be a big win. To do this, a government first has to declare that software ideas are not eligible for normal patents (the kind defined by TRIPS) and then create a new type of short patent. However, the examination procedure would have to be much faster, which brings a risk of much lower standards and thus an explosion in the number of software patents. Part of the benefit would also be undone by software monopolists adapting their tactics and updating their media formats and communication protocols more frequently so that the formats in wide use are always under patent control.

In summary, if this gets handed to us we should be very happy but it’s not a complete solution, it’s not easy, and in terms of effort it’s a detour rather than a stepping stone to where we have to go.

Posner’s other suggestions are less hopeful. He suggests getting rid of jury trials, and better training for judges. That might help invalidate more of the wrongly granted patents, thus reducing the number of patents somewhat, but that won’t change much (until patents on software ideas get classified as wrongly granted). Take the very popular H.264 video format for example. The MPEG LA cartel manages a portfolio of 346 patents in the USA alone which it claims are necessary for an implementation of that video format. Reducing that number by 50% would change nothing for developers of video software. It would still be covered by a big thicket of patents.

Worse, he then suggests giving more resources to the patent office and giving it the additional power to hear patent infringement cases. The patent office has a financial interest in granting as many patents as possible, so increasing their resources would probably result in an increase in patents granted. Giving the patent office the competence to hear infringement cases would mean that disputed patents would be reviewed by the same biased organisation that granted them in the first place. This would be disastrous.

That said, it’s encouraging to see that he has a good understanding of the roots of the problem, and that he agrees that different domains should be treated differently. The US Supreme Court’s Bilski and Mayo rulings also show that certain judges understand that something has to change. We have to keep explaining that abolition is necessary and smaller solutions just don’t work.

See also:

Brazilian patent office software patent consultation

Tuesday, March 20th, 2012

Brazil’s patent office has launched a consultation about granting software patents.

Please join the ESP-Br mailing list and help us: discussao-br (Portuguese).

The patent office’s page about the consultation is here: Consulta pública sobre exame de patente implementada por software.

For info and links, there are ESP wiki pages in English:

And in Portuguese:

The deadline appears to be May 15th. The wiki page is publicly-editable. If you can add info, that would be helpful.

“Software patents don’t scale”

Saturday, March 10th, 2012

Timothy B. Lee and Christina Mulligan have published an good article:

New ESP Australia video plus committee hearing recording

Friday, February 10th, 2012

Two exiting recordings from Australia:


Or, to view Ben’s presentation in WebM format via YouTube, first go to YouTube’s HTML5 page to make sure everything works. Then you can watch Ben’s presentation at

EU court advisors: owning software ideas detrimental to progress

Monday, December 5th, 2011

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:

Note: it’s unfortunate that the Advocates-General refer to monopolisation of an idea as “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.

Study calculates economic harm from patent trolls

Friday, November 18th, 2011

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.


ESP Australia presentation recording

Thursday, November 17th, 2011

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

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

Petition This American Life to use Ogg Vorbis

Tuesday, September 27th, 2011

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.

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.

EU: A presentation about the unitary patent (

Friday, September 16th, 2011

The folks at have made a video to explain the dangers of this proposal:

(For further information, see )

Europe’s “unitary patent” could mean unlimited software patents

Tuesday, August 23rd, 2011

ESP ed. note: The following article by Richard Stallman was originally published in The Guardian. I’m republishing it here verbatim. For ESP’s information this topic, see the ESP wiki article Unitary patent.

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.


More problems than just trolls

Tuesday, August 23rd, 2011

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.