Ciaran O'Riordan (LP09)

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This is a transcript of Ciaran O'Riordan's ESP presentation at Libre Planet 2009, March 21st, Boston.





It's nice to actually feel welcome, because, for many years I was like the boogey man at conferences. People would come and present their software and they'd show what new features they'd coded in the last year, and then I'd come along and say soffftwaaaare paaatents. I'd have to tell everyone to be scared.

So I do feel welcome, and when I started out working on software patents I was working in Ireland, and in Ireland, a group of us formed an organisation just to work specifically on software patents, it was called the Irish Free Software Organisation. Some people like our t-shirts, we have a gnu playing a harp.


So, my background: I'm not a lawyer, I'm not a legal expert, I'm a computer programmer by trade. Or at least I was until I started getting into software patents. What this means is that I'm not a general spokesperson on software patents. Sometimes people ask me for my opinion on the Tom Tom case, or will Bilski go to the Supreme Court, and usually I don't know these things. I'm a programmer. What I do know is what I saw in the European Parliament because I was working on this between 2003 and 2005, and just from the general lobbying that we did during that, and a bit after as well.

EU, Bilski, India: all good

This is the first positive talk I've given about software patents. Things are going well recently. The most decisive battles in the last few years have been in the EU, the Bilski case, and India.

In the EU, very briefly, what happened is that there was a proposal to have software patents, and we fought back and forth for what was actually eight years in total, and in the end the entire proposal was scrapped. So it was all that work for nothing, but at least we showed that we could match the effort of the pro-software-patent campaigners and we gained a lot of political support and we showed that we can actually perform in this arena and that we can actually be involved in the legislative procedures.

It was also impressive in one other way because in Europe, we didn't really have structures working on software patents. Not big structures at least. It wasn't organised. We used to read Slashdot and we'd read about crazy patents in the USA and we thought that was hilarious. And then it landed on our coast, and... it was amazing, very quickly there was a movement and we managed to actually be effective. So that was impressive.


The second major decision was the Bilski case. I didn't actually follow the Bilski case, because, another thing in Europe is that we thought: it's pointless in the USA. That'll be the last country to get rid of software patents. So we were really happy. When I read the result of the Bilski case, it's very useful. And the USPTO board of appeals is now actually overturning certain patents, mostly IBM patents, based on the Bilski decision. It really does have a concrete outcome. So when we declare victory, it's not just a political victory - because everyone has to declare victory in politics - it's actually a real victory.

And it doesn't just affect the USA, because a lot of software businesses are global. The TomTom case is a good example because TomTom is a company in The Netherlands, but the litigation is happening in the US because that's the court that Microsoft has filed the documents at, and Microsoft has contacted the International Trade Commission to ask for a block on TomTom's products. So even for European companies, what happens in the USA is important.

And a second reason is that countries around the world, when they're talking about their patent policy, are usually asked to harmonise with the rest of the world, and "the rest of the world" usually means the USA. So the Bilski case is important for people all around the world.

The third big decision was in India, and most people don't even know that there was a big decision in India. I think it was 2005, there was a proposal to change the legislation to have software patents, and there was a mad battle for maybe about three weeks, and the media discussed it for about a week and a half, and then the Parliament decided, yeh, that is a bad idea, let's not have software patents.

In Europe, we were left scratching our heads wondering what just happened there. It took us eight years to do that. So we feel kinda inefficient now. But the lack of awareness of what happened in India means that there's a gap. There's something not happening right in the communication.

Who's affected by swpats

Ok, so I'm working for End Software Patents now, and that's a campaign, a slightly separate project from FSF but the funding has come from FSF. However, software patents, it has to be made clear that it's not a free software issue. We don't want people to think that adopting free software means you now have a software patent problem. Software patents, they're a threat to all different types of uses of software.

Now, there are some problems that free software developers have. For example, we can't get a licence per-copy or per-user for a patent. In that way, software patents cause a particular problem for free software. But in other ways, we have certain advantages. For example, our development is distributed, a lot of our developers are volunteers, so there aren't big pots of gold that litigators can look at.

And another thing is that, because free software can be edited by anyone, if there's a problem with one part of an application, you don't have to take the whole application off the market or tell people: don't use the application. We can just take out that one infringing part and the rest of the application can continue to be used by as many people as possible.


So, there are plusses and minuses for free software [faced with] software patents, but it's not at all a free software problem.

This has been confirmed by the previous executive director of End Software Patents, Ben Klemens. He did a study of how software patents are impacting American companies, and he found that the litigation is costing American companies $11.2 billion. And most of the companies being litigated against... it's not free software companies, it's not even software companies, it's car manufacturers, it's food companies, it's any big company, any company with a pot of gold in the bank, because the point that Ben Klemens highlighted is that every company is a software company. Every company has a few programmers down in the basement that keep the email servers working, that make a website, that give you options to interact with your clients. And every company that does this is, without knowing it, is in the software business, and they're the biggest targets. It's not free software, it's non-software companies are the biggest targets for software patents.


So, this means that they should be doing the work, not me. Why aren't they? This is a problem. There are three categories of people, three main categories that will fight against software patents - now or in the future: There's the free software community, there's the small companies in general, and there's the non-software companies.

In Europe, we got a lot of help from the small companies. They have unions, and the unions talk to the politicians and they tell them that software patents are too expensive, completely unusable, it doesn't work with small companies. In America, from what I've heard, that isn't happening so much. The small companies are all business partners of the mega-corporations, so they're scared of annoying their business partners. In Europe, the same small companies are also business partners of mega-corporations, so there's something missing there. I don't know why the European companies aren't afraid of the same thing. We should get the SMEs active on this.

We should also get the non-software companies active on this. We just have to first convince them and explain to them that they are at risk and that many other companies have already been targetted. In the long term, hopefully the End Software Patents campaign will rely on small businesses making small donations, and big non-software companies making big donations. However, that's not happening yet, so at the moment we're relying on the free software community to kinda bootstrap the campaign. But even if we rely on the free software community, this isn't a specifically free software problem.

Why the legal focus?

So, what we're focussing on is either changing the legislation or getting new results in the courts. There have been a lot of discussions about other ways of reducing the software patent problem. In general, these other ways have not been effective. They sometimes have small benefits or they work in small sectors, but in general, they will not solve the software patent problem.

I can briefly mention patent pools. All our friends put their patents into a pool and then if a big bully attacks us we can say: but we have patents too! But the problem is, of course, most of our friends, they have patent agreements already with the other patent holders, agreeing not to sue each other.

Also, when our friends put patents into a pool saying "We won't use these against free software", well, it's our friends putting the software patents in there, and we weren't afraid of our friends suing us. So it's not a big comfort.

We can review patents, we can look for prior art, we can look for patents that are too obvious to exist. Yeh, that can be useful. It's very slow, very expensive, but it can be useful. Sometimes if there's a particularly annoying patent, you can get rid of that. But in general, it can't solve the problem, and the TomTom case is an example.

TomTom have been accused of violating eight patents, I think three are software patents. They're patents that we know, or we're very confident, would be overturned in court. It's Microsoft's FAT patents. However, they might be overturned in a court, but what's to say that if these three, or all eight were overturned, Microsoft has 10,000 patents. What's to say that Microsoft won't just dig into their vault again and dig out another eight and say: well, you don't infringe those eight, do you infringe these eight? And this process can go on. In general, to get rid of the problem, we have to have zero software patents.


Another problem with quality is that some software patents are good quality. The RSA algorithm, the Mp3 encoding algorithm, public key encryption... however, there's no way you can go to a patent office and say: this is a terrible idea, it was completely obvious. So, trying to overturn them that way, it's not going to work completely.

A last option is our licences. In the GPLv3 process, we negotiated various clauses that could be added to GPLv3 to protect some free software users from the patents of companies that distribute GPLv3 software. But this only protects us against companies that are distributing GPLv3 software, many of which are already our friends, so there was no problem in the first place. And also the clause... there were limits to how strong it could be because the stronger you make it, the more afraid the patent holders are going to be to distribute GPLv3 software. So, with our licences, we can only fix a very small category of the problem.

Only talking about software

Some people wonder why we focus on software patents. How can you draw a line between different types of patents? One of the most important things is the tactical reasons, because, if we extend the theory and decide that actually software patents are bad and all patents are probably bad, what we do is, then, as well as having Microsoft against us, which is enough work, we also have the chemicals industry, and the auto industry, and the pharmaceuticals industry against us. And this is more work than we can handle. So, in general, we take a position on software patents, but we don't take a position on pharmaceutical patents. Maybe pharmaceutical patents are bad, maybe they're good, that's just not our area.

Another problem is that, in other areas, for example pharmaceuticals, sometimes the organisations that we think would be our natural allies - the generics companies in pharmaceuticals - sometimes they don't like our policy. We want: no software patents. But in the generics industry, a lot of the time they just want to talk about the length of patents, or how much damages you get, or how clear they should be. Our solution doesn't naturally apply to their work. We've done the research on software, we're sure that software patents are a bad idea, so we're focussing on getting rid of software patents.

ESP's plans


The way ESP is going to work, is... under Ben Klemens, ESP worked on the Bilski case, which was extremely important. And Ben also did an economic study of the cost of software patents to American industry. These were very focussed projects. Now we're going to try to step back a bit and look at all the projects that are happening regarding software patents, and try to make all that information available to the other projects.

When I look back at the EU, it's only been four or five years, but already the fantastic documents that we had at the time, they're starting to disappear. Websites are changing, some news sites are disappearing, and it's very hard to find these documents. Some of these documents were only distributed in mailing lists that don't even have a public archive.

What we're going to do is, we're going to try to put all this information together on a website and make it accessible so that the information in the EU is accessible to America, Australia, New Zealand, and everywhere else. And the information from Bilski is available to these as well, so that other campaigns don't have to start from zero. They can build on what's already been done.

The wiki is now online:

Please contribute!

The first thing we're going to be putting online will be a wiki, and this will be in English first and hopefully then in other languages soon after. That will be publicly modifiable, and we hope that we'll be able to gather the information from all the parts of the world and different points of view, and we'll put it into some categorised format that makes it accessible.

Then we'll start doing an email alert, maybe once a week, on what's coming up in the short- or mid-term future, what needs to be worked on, what new events are taking place. And we'll put a news or a blog site online as well.

The news site is online too:

Read! Comment!

There will be more court cases in the US, but not in the very short term. There will also be new developments in the EU, and there are other developments in South Africa and New Zealand that we're aware of. However, we will not work on all of these. Or, when we do work on them, they won't be a 100% focus. What we're going to try to do is, work on each project, but always with a view to documenting everything, all the steps, so that our work on each project becomes a whole that is more useful for future campaigns. So, rather than... End Software Patents can currently afford to employ one person. One person can be useful... I don't want to belittle my effectiveness ...but one person can't do all the work. So it's more important to try to make a platform, so that other people can get active.


One thing we'll have to do is, we'll have to build a team, a working group for doing lobbying in the USA. I have some experience in the EU, we have some experience with the Bilski case that will be useful as well, but we still need to build a group of activists that will be able to, for example, find a contact in the Senate whenever they're discussing the patent reform act. Some good news on this is that the League for Programming Freedom, which has been active on this fight against software patents since ...1991? 1989, a long time. The League for Programming Freedom is getting active again, and they have a website, so hopefully we'll be able to work with them as well as other groups and get a team active in America.

In general, the idea will be to have a global coordination, because, so far all the campaigns have been focussed on the EU, focussed on Bilski, however, it's about time we started coordinating on a global level. I'm pretty sure Microsoft has been coordinating their patent policy on this level for a long time.

Applying foreign ideas locally

Some people have asked me, how can information from any one specific jurisdiction be useful on a global level? The legislation regarding software patents is usually quite vague because most patent legislation was written thirty years ago, and it was written before modern technologies existed. A lot of it is based on the international TRIPS agreement, which, has a very vague wording. So, often, the wordings that exist in various jurisdictions, they're open to interpretation.

In America, the court case should have been a legal issue, about deciding what does the law says. That's the theory, but in practice, the law is vague enough that the interests can be looked at and people can decide is it a good idea, not just "what does the law say".

In this way, the legislation is vague, and we have a lot of legal wordings that were developed during the Bilski case and during other campaigns which can be useful. For example, we decided that, to be patentable, an invention has to use "forces of nature'", or it has to use "applied natural science", or it has to have "significant post-production output". There are various wordings, and they mightn't fit into every jurisdiction, but it's a good starting point to give people ideas for what wording might work in New Zealand or in Canada, or in a future court case in the USA.

One important thing is that we always have to avoid saying that software is technical. That seems a little bit counter-intuitive, but the TRIPS agreement, which most countries of the world have signed up to, says that inventions in fields of technology are patentable. So, in Europe, we had to all the time talk about how software is not technical. It takes a little bit of linguistic gymnastics, but it's just something you have to keep in mind from the start. Hopefully, with a website making these issues clear, we can help lobbyists and campaigners avoid making the mistakes that we made in the early days in Europe.


This way, we manage to make use of campaigns whether they succeeded or not. Whether a campaign has been effective or not, we can always look at the legal wordings and put them on a website and contribute all these ideas so that something that failed in one jurisdiction could be improved and it might work in another jurisdiction.

Examples: ABS and mp3

We also want to do some examination of specific examples, and I'll just give two examples of innovation, one that should be patentable and one that shouldn't be patentable.

The one that could be patentable is anti-lock braking. The car industry from Asia came to Europe and lobbied for software patents because they said they have: brakes, a computer, and software. They don't change the brakes, and the don't change the computer, they just change the software, and all of a sudden they have anti-lock braking systems. They said: well, this is obviously a software patent, and you're against software patents, so we're against you.

We had to work through the example, and we managed to explain to actually no, this isn't a software patent. It's being implemented in software, but the innovation is on how the brakes are being used. It happens to be controlled by software in your implementation, but it could be done manually, or there would be theoretically other ways of doing it. It's not necessarily a software patent. This is a braking patent, and we had to tell the car industry, ok, you don't have to fight against us, we're not trying to invalidate your car patents. But it was difficult at first for the politicians to understand.

There's a question there.

Audience Q.1: ABS and feet

Audience question #1: If the car industry has patents on anti-lock brakes, and then you learned to mimic that same thing with your foot, are you a patent violator? That seems very close on being a software patent because it's just a way of allowing software to control hardware, which seems a lot like what we're working against too.

Theoretically, maybe. So if a rich enough person starts doing that with their foot, I think he should be worried.

(22:27) [laughter]

Audience Q.2: Firmware patents

Audience question #2: Have you thought about someone taking the software and combining it with firmware or hardware and claiming it's a whole and patenting that rather than just the software?

Well, what they could do is, they could claim the whole thing as an invention, but that wouldn't stop us from just taking the software idea and implementing the software idea on our general purpose computers.

Audience member comment: At one point before software patents kicked in, if you actually wanted a software patent you had to patent it by describing it as hardware.

Yeh, in Europe we had "computer-implemented inventions" instead of software patents, which Microsoft always claims are on a "limited resource computer". I think they might be eligible for a patent if they managed to invent a non-limited resource computer. I think that would be quite an innovation.


Audience comment: (inaudible) ...describe... makes a big difference ... that's why the terminology is very important.

And that's one of the fundamental problems with software patents. Software is so abstract, it's possible to describe it in so many ways and it's very difficult to have any clear patents on software.

Audience Q.3: Did Bilski change anything?

Audience question #3: There are people who say that the Bilski case didn't actually change anything. Is it your opinion that it did?

Absolutely. There have already been five software patents overturned based on the Bilski case, so it's clear that it has made a difference.

Audience question #3b: What was the nature of the change?

The Bilski case introduced a new test, which basically requires that there is some kind of activity, I think it might have even said "significant physical activity", in the innovation. This would mean that what are called "pure software" innovations, are excluded. Now, the actual wording in the Bilski ruling is open to interpretation, so it's not exactly clear, however the US patent office has rejected, overturned five existing software patents, so, they've decided that it's substantial and it's realistic enough that there are grounds for rejecting software patents based on the Bilski decision.


Audience Q.4: Describe good legislation

Audience question #4: You talked about lobbying in the US and legislation. Can you give us any idea of in what sort of shape you expect? It'll probably be a little more complex than "no more software patents", but do you know how that would be worded or how that could be figured out?

Well, it will come down to: the lawyers will have to go through the history of court rulings and legislation. In Europe, we started off by saying you have to have an innovation in "forces of nature" because in Germany there was case law which said that a certain patent was rejected because there was no innovation in forces of nature. We used that because there was some precedent. Later, we changed our minds and we used "applied natural science", and this came from another court case.

In general, it will depend on the jurisdiction, but if we can gather together the terminology that worked in some jurisdictions, then at least we can have a starting place. We can look at American legislation: does the term "forces of nature" have a meaning in American legislation? Maybe it does, maybe it's very useful, or maybe we have to avoid it. Does "applied natural science" have a meaning? What is the meaning. It'll have to be decided at the time.

["time for one more slide"]

Ok, one more, one more. I'm going to skip how lobbying is done...

Lobbying: have a list of arguments

Very basic things... when we're doing the lobbying, the most important thing probably is that we always have to have a list of arguments. We often have ideas for the perfect argument. We have ideas for, for example, explaining that software patents cause monopolies, or software patents interfere with freedom of expression or freedom of the press. Then you can go to a politician and you can actually find politicians that don't actually mind monopolies. Y'know: maybe it hurts our country, but it gives us global dominance in that field. Or you have politicians that aren't really big fans of freedom of the press because they got elected because they're friends with the TV executives. There were some surprising things like that.

And also, the politicians don't care about software patents. They always link each issue into something they do care about. Some politicians have a history... they used to be a journalist, some worked on the coast and they think marine boundaries are important. But, what we have to do, we have to have a list of arguments, we have to have ten, fifteen different things. And for each argument, we have to studies backing them up. I can't go to a politician and say we should block software patents because they're bad for small companies, and they ask "'What small companies?", and I say it's my opinion that they block small companies.

We have venture capitalists that are against software patents. We have standards organisations or companies that need standards, they find it very difficult to implement standards with software patents.

I've got 30 seconds left.

It blocks innovation, it blocks free software in some ways. Free software wasn't a very good argument maybe eight years ago, but free software has become very prominent nowadays, so we can actually now talk to politicians about free software developers not being big fans of software patents. The non-software companies, hopefully they'll get on board. Even so, we can still go to politicians with the study showing how patents are costing $11.2 billion. That's something that politicians can understand. We can make the argument about monopolies. We can point out that patents are bureaucratic. Every software patent requires bureaucracy in the patent office, in litigation, between companies, the legal teams have to analyse things. And we can also make the argument that software patents are generally bad for the economy. The US Patents and Trademarks Office is funded by the tax payer, plus by the companies applying for these patents, and the non-software companies that have paid out $11.2 billion. They're the people who are paying for the patent system, in particular software patents.

This is an argument about the economy, and it mightn't be the first argument that we think about when we think about software patents, but we have to always have a list ready so that whenever we get a feel for what the politician's interest is, that's how we pick the right argument for the politician, not our favourite argument.


Ok. That's what we're doing. Hopefully the wiki will go online in the next two weeks. The main theme is that we're going to try to make it possible for other people to get involved.

The wiki is now online:

Please contribute!

Donations will be needed at some point. Of course. FSF is handling donations for End Software Patents, but End Software Patents does have a separate bank account and will be doing its own fund raising. We're going to be looking for help with that at some point, pretty soon.

Currently the general model of End Software Patents is pretty low cost, so that's our philosophy, but we do still have some costs.

Audience Q.5: swpats coming back in EU?

Audience question #5: ...Europe... ...but they won't stay dead. Are they coming back?

They're coming back, but they're like a bad music band, they've been coming back every year for the last four years.

Audience question #5b: Are they doing the same thing? Or have they...

No, the problem is, because in Europe we were completely disorganised at the time, they picked their favourite way of getting software patents, and they said, ok, we'll just tell the politicians to change the legislation and everything will go smoothly. And it didn't.

So now they're looking around. That was their favourite method, and it didn't work. All the methods they're trying now, it's all plan B, plan C, plan D. So each time they make an attempt, it's not a very strong attempt. However, if they keep on trying, eventually they're going to get there, so we have to also [keep trying]. People took a bit of a break in Europe after the lobbying in 2005, people were a bit burned out.

Audience Q.6: Politician's beds

We actually slept many times on the floor in the Parliament, it was like an old-school hacker community in the free software community, until of course the politicians told us there are beds in the Parliament. You can sleep in the beds if you want. Oh yeh, ok.

Audience question #6: You slept in the politicians' beds?

Well, they were the politicians' beds, but the politicians weren't present. That's not how we do our lobbying.

Ok. I think I've eaten all the time. Thank you very much for your attention.

Third-party summary

(This summary provided by an audience member.)

Irish Free Software Organisation.[1]

Real victory with Bilski.

Tom Tom is in the Netherlands, but the litigation is happening in the US.

Disconnect with communication within the movement, not knowing about what was happening in India.

Ben Klemens did a study of how software patents are impacting American companies and found that the litigation is costing them 11.2 billion dollars. Car manufacturers, food companies... Every company is in the software business because every company is using software -- makes them a target.

Why aren't these companies doing the work to fight software patents?

Free software community, small companies, and non-software companies are the groups that will fight software patents. In Europe, small companies helped out a lot, with the assistance of the unions. But that's not true in the US because those companies are partners to larger corporations and don't want to offend them. That seems true in Europe as well, but for some reason the smaller companies aren't as afraid as they are in Europe.

ESP will rely on small businesses making small donations and large non-software companies making big donations. But right now we're relying on the free software community to bootstrap the campaign.

We're focusing on changing the legislation or getting new results in the courts. There has been discussion about other ways of reducing the problem but they have not been that effective and they won't solve the problem. Patent pools, for example.

Our free software licenses can help but only when patent holders distribute GPL software -- and they might be afraid to do that if it gets to be too powerful of a tool.

Don't take a position on pharmaceutical patents -- not our area. We're sure that software patents are a bad idea.

Some of the patent sites that had useful documents on them before have disappeared, so we are putting this information together on a web site and making it accessible. Collecting info about the EU campaigns, Bilski, etc. Putting a wiki online, English first and other languages later. Also doing a news site.

Make a platform so that other people can get active.

Hope to work with

Software is not technical! We have to specify that when working in Europe to explain why it's not patentable.

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