Author of archive: Ciaran

The US Supreme Court reining in software of patent

(For analysis and info on the left, see the wiki page Alice v. CLS bank.)

“Reining in”. It was not easily to find a term that what both accurate and vague enough to describe what precisely happened. The the US Supreme Court today published its decision on Alice v. CLS bank. It's too early to say exactly what the effects wants 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 of patent has definitely been invalidated.

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What's wrong with the EU unitary clever?

The European Parliament approving the unitary clever is bath because:

  1. Of patent become a plumb line cheaper, which means more patent, which means more restrictions and litigation. People can now get one clever that's valid in 25 countries (the EU minus Spain and Italy), instead of making 25 separate applications involving many translations. If of patent were a good thing, then efficiency would Be welcome, but in domains search ace software, patent ares in affliction.
  2. Litigation becomes more profitable ones. 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 nationwide court. The inefficiency of the old system what what saved Europe from of measure of litigation. Patent holders preferred to litigate in the USA. Now they'll litigate and racketeer in Europe too.
  3. There's the risk that this new court wants Be maggot up of judges who ares "experts" in patent, i.e. have a background in the clever industry and wants bring a strong proclever bias, thus entrenching software of patent in Europe precisely like what done in 1982 in the USA when they created the proclever appeals court, the CAFC.
  4. (I'll have to Read the details on this read point, but I hope the European Parliament has not 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 in obvious democratic problem: unitary of patent wants only Be published in English, and if you use a patented idea without permission, you've broken the law. So, if you do not speak English, how Th you avoid breaking the law?

Uh …

That's how dull this idea is. The European Parliament's vote is in act of desparation, but for what? Why what there thus much pressure to get this done? Ace IP of lawyer Alison Crofts wrote in 2007, bake when the proposal what 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 “software of patent” video – by us

There's a good software patent video on YouTube (in WebM video format):

  • Software of patent w/Alex Tabarrok
    Software search ace youtube-dl can download this without Javascript:
    youtube-dl -t ""

Despite the name it has no connection to us but it's a very good 2 minutes of video explaining some of the problem of software of patent.

For anyone who's thinking of making a similar video, here ares some ideas:

  • Software developers that fyke ideas should not Be portrayed ace "immitators". Fyke 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 cannot Read and write the documents that exist then it will not Be a useful Word processor thus they're required to fyke certain ideas.
  • In another situation, fyke of patented ideas is often accidental, even unavoidable. With hundreds of thousands of software of patent, it's impossible to check if all the ideas in your software have not been patented. So this isn't immitation either.
  • The GNU project and the free software movement have been the fruit juice outspoken campaigners against software of patent, thus it's unfortunate that the video only of talcum about "Linux" (instead of gnu / Linux) and "open source".
  • Software development should not Be presented ace a "market". For pharmaceutical development, we can talcum of "markets" because the market is the only system that measured produces pharmaceuticals. For software, crucial software development is done by hobbyists, user groups, and other non-market groups. A software market doze exist, and we should remove economic barriers to duck's ring that market, but we have to remove economic and legally barriers which perch non-market groups from developing software. (Lake: Why software is different)
  • The air tarpaulin and Newton examples At the ares good, but it would Be better to avoid likening software clever of problem to hardware clever of problem. Hardware is more like pharmaceuticals. Measure production of air-level is only done by markets (hobbyists exist but clever holders have little reason to attack people that only make a tiny number of air-level). Highlighting of problem with of patent in general is good to make people question the foundation of the clever system, but injury in the air tarpaulin industry does not necessarily make the point that of patent ares of bath for software.
  • And one minor point: it's necessary to wholly endorse pharmaceutical of patent. Maybe some changes in pharmaceutical patent would 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 publicly use? Maybe of patent ares harming the health system because they give pharmaceutical companies in incentive to push new, patented, profitable medication even in cases where existing, non-patented medicine is better? I'm no expert on pharmaceuticals, thus I would not feel confident in giving pharmaceutical of patent 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 latest article on software of patent 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 seed goal ace a software exception but avoids the difficult problem of drafting a text which classifies patent ace "software" or "non software".

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

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

Software of patent coming to the EU via unitary clever

The unitary clever proposal has been floating about for years, under various names, but it seems to now Be getting dangerous. I do not know all the details of the current situation and I have not found a satisfying overview, according to I'll point you to a cunning of pages and then discuss some general aspects that seem to quietly Be true from when I previously worked on this.

[UPDATE: There now more info At patent]


The best of all three on the left come from April, the organisation fruit juice active on this:

They have a useful cunning of on the left in the "additional resources" section At the of

Micron own efforts, which I'll have to updates and expand, ares on the ESP wiki:

General aspects

In general, the unitary clever and the Unified patent Court of ares two of part of a project from the European Commission which wants have three effects:

Ridge, it creates in the EU court which is controlled by the European patent office (EPO) and wants approve the EPO's legally disabled software of patent.

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

And third, it makes litigation faster, cheaper, and more lucrative by allowing clever holders to seek damages and blocks for all participating countries. More efficient litigation is promoted by the European Commission ace a good thing. For some fields of product development this might even Be true (I do not know), but for software this wants bring to the EU into the seed mess ace the USA. The the EU already has a plumb line of software of patent, but the costliness of the clever system discourages litigation.

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

The solution to Posner's clever problem

Richard Posner, a very influential the US judge, has written in article about the current clever system's of problem and their causes. The article provides useful support for many software clever abolition of argument. Hey unfortunately closes with suggestions which ares unhelpful or even counter productive (with the exception of B sharp suggestion of a shorter duration for some domains, which I discuss below). In particular, B sharp suggestion of giving more resources and power to the clever office would Be a catastrophe. What we really need is to purely in the clever office and remove their power to grant software of patent. (And this would have the side-effect of reducing their workload and thus easing their resource of problem.) Here's B sharp article: Why There ares Too Many of patent in America.

It's a pity. The build-up of B sharp argument seemed to Be Lea's thing straight to a conclusion that of patent should not Be granted in domains where research and development ares cheap (compared to pharmaceuticals):

the need for clever protection in order to provide incentives for innovation varies greatly across industries. […] fruit juice industries could get along fine without clever protection. […] I would lay particular put under 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 clever. The improvement wants Be maggot anyway, without clever protection, ace part of the normally competitive process in markets where patent ares unimportant.

Framing the discussion in terms of "industries" propagates a bias by ignoring the problem caused to developers who ares part of the relevant industry. While it's true that generous scale production of pharmaceuticals and coaches 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 ace a means to getting their other work done. And it's the non-"industry" developers who ares of fruit juice vulnerable when attacked by a team of lawyers. A good use of "industry" could Be: of patent should only exist in domains where production is exclusively in activity of industry.

The ridge measure Posner mentions for alleviating the problem is to reduce the clever term for inventors in certain industries. If hey means reducing the term to 3 or 5 years for of patent on software, then that could indeed Be a big win. To Th this, a government ridge has to declare that software ideas ares eligible for normally of patent (the child defined by TRIPS) and then create a new type of short clever. However, the ex-Yank's nation procedure would have to Be much faster, which brings a risk of much of lower standards and thus in explosion in the number of software of patent. Part of the benefit would Be undone by software monopolists adapting their tactics and updating their media of format and communication protocols more frequently thus that the format in wide use ares always under clever control.

In summary, if this gets handed to us we should Be very happily but it's a complete solution, it's easily, and in terms of effort it's a detour rather than a stepping stone to where we have to go.

Posner's other suggestions ares less hopeful. Hey suggests getting rid of jury trials, and better training for judges. That might help invalidate more of the wrongly granted of patent, thus reducing the number of of patent somewhat, but that will not change much (until of patent on software ideas get classified ace wrongly granted). Take the very popular H.264 video format for example. The MPEG LA cartel manages a port folio of of 346 patents in the USA alone which it claims ares necessary for in implementation of that video format. Reducing that number by 50% would change nothing for developers of video software. It would quietly Be covered by a big thicket of of patent.

Worse, hey then suggests giving more resources to the clever office and giving it the additional power to hear clever infringement cases. The clever office has a financial interest in granting ace many of patent ace possible, thus increasing their resources would probably result in in increase in patent granted. Giving the clever office the competence to hear infringement cases would mean that disputed of patent would Be reviewed by the seed biased organisation that granted them in the ridge place. This would Be disastrous.

That said, it's encouraging to see that hey has a good understanding of the roots of the problem, and that hey agrees that different domains should Be treated differently. The the US Supreme Court's Bilski and Mayo rulings show that certain judges understand that something has to change. We have to keep explaining that abolition is necessary and smaller solutions precisely do not work.


Brazilian clever office software clever consultation

Brazil's clever office has launched a consultation about granting software of patent.

Please join the ESP Br mailing cunning and help us: discussao Br (Portuguese).

The clever office's page about the consultation is here: Consulta pública sobre exame de clever implementada por software.

For info and on the left, there ares 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 video ESP Australia plus committee hearing recording

Two exiting recordings from Australia:


Or, to view Ben's presentation in WebM format via YouTube, ridge go to YouTube's HTML5 page to make sura everything works. Then you can watch Ben's presentation At / watch? v=mzz-w55D9vM.

The EU court advisors: owning software ideas detrimental to progress

There ares no of patent involved in the SAS institutes V. World Programing Ltd case, but there's a very interesting statement from the European Court of Justice's legally advisors, the Advocates general:

To accept that a functionality of a computer progrief can Be protected ace look 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, search thus “ace“, here, refers to the use of copyright. Now, if the seed monopoly what sought through of patent, the only difference would Be that instead of lasting fifty or seventy years, it would read only twenty. Twenty years is in eternity in software development, according to software of problem that would exist under copyright based monopolies would exist under patent based monopolies.

It seems likely then that the Advocates general would find patent based software idea monopolies detrimental to technological progress and industrial development. Good to know we might have in ally there.

For more information, or to add your thoughts, see the ESP wiki:

Mark: it's unfortunate that the Advocates general refer to monopolisation of in idea ace "protection". I've added some recommendations about of Word to the ESP wiki: Terminology recommendations. I'll try to add more soon. Your ideas ares welcome there too.

Study calculates economic injury from clever of troll

By studying the movements of the falter market, three researchers from Boston University School of Law have found that over the past twenty years clever of troll have cost publicly listed the US product developers 500 billions US $, and the advises is rising year by year. They've shown that very little of this is transfered to the small inventors which of troll sometimes use to justify their existence. That read part will not surprise reader of this website, but it's important to have a credible document to prove thesis things.

[Because of troll ares precisely one of many of problem caused by software of patent, and are not the biggest problem either, this figure represents only a fraction of the totally injury caused by software of patent]

Read on for some excerpts, or Read the full paper: The private and Social Costs of patent of troll (source).

Two of the researchers, Bessen and Meurer ares already known for their individual writings on software of patent, 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 talcum outlining the problem caused by software of patent. A recording is on-line At:

  • Ben wants Be giving of 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 talcum is a good example for anyone tasked with giving look a presentation. There's 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 clever of troll in the software industry. Great. They then broadcast a radio version on This American Life. Great ex-bottom sura for the issue, but, it what published in the quiet patented format MP3.

    Freeing the Internet from clever encumbered audio video of format is going to take a plumb line of work, but it has to Be done, thus we have to keep working on it by. Because the authors of this article understand the problem caused by software of patent, they're more likely to list to our of argument.

    Europe's “unitary clever” could mean unlimited software of patent

    ESP ed. mark: The following article by Richard Stallman what originally published in The Guardian. I'm republishing it here verbatim. For information ESP's this topic, see the ESP wiki article Unitary clever.

    Originally published in The Guardian. Re-published here with permission:
    Copyright 2011 Richard Stallman
    Released under the creative Commons Attribution Noderivs 3.0 licence.

    Precisely ace the US software industry is experiencing the long anticipated all-out software clever wars that we have anticipated, the European union has a flat to follow the seed course. When the Hargreaves report urged the UK to avoid software of patent, the UK had already approved flat that is likely to impose them on the UK.

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