Several patent reform advocacy organizations have banded together to form a new coalition that will lead a collaborative effort to abolish software patents. Supported by the Free Software Foundation, the Public Patent Foundation, and the Software Freedom Law Center, the End Software Patents (ESP) project aims to challenge the legal validity of patents that do not specify a physically innovative step. In addition to helping companies challenge software patents in the courts and in the patent office, the ESP project will also work to educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.

A growing number of software patents cover abstract principles that are essential to software development. Consider, for instance, patent 5,175,857, which covers a "System for sorting records having sorted strings each having a plurality of linked elements each element storing next record address." What the '857 patent describes is a quicksort implemented with a linked list. Such patents are extremely detrimental to innovation because they apply serious encumbrances to the foundational building blocks of computer programming.

The rapid proliferation of software patents in recent years has transformed the technology industry into an intellectual property minefield. Software companies have been forced to accumulate massive patent portfolios to use as leverage in elaborate cross-licensing agreements. The resulting situation, which is akin to an arms race, seriously disadvantages independent software developers and has made it increasingly difficult to write conventional software without committing any infringement.

The courts will revisit software patentability

The patent system has traditionally excluded coverage of innate scientific truths and mathematical expressions. There is no basis in law for assuming that software methods are patentable, but some dubious legal rulings issued by the Federal Circuit after its inception in the 1980s have created legal precedents for software patentability. The federal circuit recently revealed that it intends to use the Bilski case (PDF) as an opportunity to reevaluate the scope of what can be patented—a move that could have extremely broad implications for patents on software and business methods.

ESP's executive director, tech policy expert Ben Klemens, believes that the current climate in the courts and broad recognition of patent issues in the software industry make this the perfect time to mount a serious challenge against software patents. "Software patents endanger both software developers and businesses, ironically stifling the very innovation that the U.S. patent system was intended to foster," Klemens said in a statement. "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 detailed report (PDF) published at the organization's web site, ESP estimates that companies waste $11.4 billion every year in litigation over software patents. The report also notes that companies not directly involved in the software industry are increasingly being targeted with software patent litigation. Some examples of companies that have recently faced software patent infringement suits include Burlington Coat Factory, the Green Bay Packers, and Kraft Foods. As our society becomes more and more dependent on software, the impact of these lawsuits will escalate sharply.

ESP's report also points out that technological innovation in the software industry flourished profoundly prior to the court rulings that made software patentable. This provides compelling evidence that software innovation will not be stifled in the absence of patent protection as some speculate. It is also worth noting that specific implementations of software methods—in the form of source code—are fully protected by copyright law, which is arguably more than sufficient to safeguard the intellectual property rights of software creators.

Patent reform proposals are gaining momentum in congress, but largely fail to address the software patent issue. The ESP project's efforts to eliminate software patents by working through the court system could have very positive results for the entire software industry by helping to put an end to the destructive gridlock and patent trolling that has increasingly stifled technological innovation in software development.

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