Author Archives: Ciaran

US Supreme Court reining in software patents

(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.

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What’s wrong with the EU unitary patent?

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

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

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

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

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. […in 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

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.

New ESP Australia video plus committee hearing recording

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

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

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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ESP Australia presentation recording

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

    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.

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

    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.

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