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You are here: Home FSF News Over 450 letters sent to the USPTO proposing guidelines to end software patents

Over 450 letters sent to the USPTO proposing guidelines to end software patents

by Brett Smith Contributions Published on Sep 28, 2010 02:14 PM
Last week, we put out an action item asking people to write to the USPTO, and explain to them why software should not be eligible for patents under their forthcoming post-Bilski guidance. To answer the call, you all sent in more than 450 letters, offering the USPTO all kinds of legal and practical reasons why they should stop issuing software patents. This is a tremendous response, and we're very grateful to you all for participating. Thank you very much!

Of course, we also submitted our own letter written by the director of the End Software Patents campaign, Ciarán O’Riordan. You can read it on the ESP site. We used this opportunity to point out three specific points in the Bilski decision that we believe seriously undermine any legal case for software patents. If the USPTO incorporates even one of these points into its guidance, it will be a big win for opponents of software patents.

While we wait for the USPTO to publish that guidance, we wanted to share some excerpts from the letters we read, to illustrate how varied the case against software patents is. Brandon Runyan talked about how patents affect students and their ability to learn about computers:

As a software developer and a student, I know I speak on behalf of all young software developers when I say that the restrictions put on everyone by software patents greatly affect the work that we do now and future projects we hope to pursue. ... In a world where we utilize computers to communicate, connect, solve problems, make art, and support our livelihood, we cannot afford to let software patents restrict the ability to exploit and improve software freely. A world where software patents threaten and extinguish software innovation is not a conducive or nurturing place for our students to study, play, and tinker with technology of the future.

Stephen Sekula offered a compelling analogy to poetry:

Poets use our human languages to construct literary solutions to the puzzles of human experience, even though there are a finite number of human experiences. Poets are not allowed to patent the idea of writing such a poem; they may copyright their specific construct, but not patent the idea of the construct.

In the software world, thousands of people have had to solve the same problem. They have each brought their unique software writing talent, using the language of the computer (mathematics), to solve those problems. ... Software patents threaten my creativity by bringing the possibility of a lawsuit, all for my use of mathematical machine language to solve a problem. That would be like patenting a poem about love, and then having the poet sue me if I choose to write and distribute my own love poem. It stifles creativity and creates a legal environment that threatens innovation in the United States.

Of course, in the end, the point that often resonates with us most is the observation that software is math, which has long been unpatentable. Clay Alberty made this point succinctly:

At its core, software is mathematics. The rendition of a mathematical function or algorithm in software is, in reality, a version of that function or algorithm itself, which cannot be patented. The entire framework behind modern computer software - e.g. the personal computer, the internet, and all individual applications built thereon - are built solidly and squarely on the foundations of mathematical discovery from ancient times through and up to the modern day. An individual piece of software must therefore represent a new permutation or composition of one or more of these fundamental concepts - a new piece of mathematics.

Our thanks again to everyone who wrote in. The USPTO and current director David Kappos have ample legal reason—based on Bilski and past Supreme Court precedent—to issue guidelines to end the patenting of software and restore some semblance of sanity to the system. Now it's time for them to act.

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