End Software Patents (ESP) Project Formed to Eliminate Software Patents

Boston, Mass., February 28, 2008 – End Software Patents, a project working toward the elimination of software patents, was launched today. The ESP project will initially focus on two approaches: 1) assisting corporations that choose to challenge software patents in the courts and at the U.S. Patent and Trademark Office (USPTO) on the basis that patents for software and designs with no physically innovative step have no legal validity, and 2) public education aimed at passing laws to protect software from patent law.

The End Software Patents project believes the current problems with the U.S. patent system are caused by the elimination of restrictions on what is patentable, rather than the details of processing and examination. For example, virtually every patent troll today is holding patents in software and business methods; there are no pharmaceutical patent trolls.

“Software patents endanger both software developers and businesses, ironically stifling the very innovation that the U.S. patent system was intended to foster,” said Ben Klemens, executive director of End Software Patents. “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 separate announcement today, ESP released its first report on the current state of software and business method patents. The report covers the economic impact of software patents, including the $11.2 billion* in costs incurred by U.S. businesses each year by software patent litigation. It also covers the expansion of software patent infringement suits to threaten general business, and recent judiciary statements and rulings that question the patentability of software – including relevant U.S. Supreme Court statements and the February 2008 Court of Appeals for the Federal Circuit (CAFC) announcement that they will reexamine the scope of what is patentable. These statements and rulings provide new arguments and authority to those who face lawsuits based on software or business method patents.

“Software patents are a burden on U.S. businesses and innovation, and the debate on the patentability of software will have a profound impact on the software industry over the next 20 years,” said Brad Feld, Managing Director at Foundry Group. Feld added, “I am pleased to see that the End Software Patents project has formed to directly address the problem. These are smart people who know a lot about patents, and I have every expectation that they will help achieve change.”

End Software Patents’ focus

ESP will serve as a non-profit advocacy group for the elimination of software patents, especially in the U.S. It will also provide resources and advice to U.S. businesses defending cases of software patent infringement. By educating computer users and software developers about the harm and unfairness of software patents, and by educating businesses and lawyers about the economic and judicial arguments supporting the case that software is not patentable, ESP aims to remove software once again from the effect of patent law.

“There is one law for all patents, and it is being weakened to mitigate the mess with business methods and software, which means that designers of drugs, machines, and bona fide electronics are having the rug pulled from under them,” stated Klemens. He added, “Rather than neuter the entire patent system, we are proposing to return the scope of what is patentable to what it was before we started seeing all the headlines about how the patent system is broken.”


End Software Patents’ executive director is Ben Klemens, who has written extensively on patent reform and other tech law issues. Klemens is currently a Guest Scholar at the Brookings Institution, and is the author of Math You Can’t Use: Patents, Copyright, and Software. Klemens holds an MS and a PhD in Social Science from the California Institute of Technology and a BA in Economics from the University of Chicago. ESP is working in conjunction with a network of lawyers, business executives and academics.

* UPDATED FEBRUARY 29, 2008: ESP had earlier used a rough figure of $11.4 billion, which we had widely reported to the press, based on a number of conservative but rough estimates of the costs of a patent suit. After receiving external feedback, we have chosen to switch to the figure here. We apologize for the inconvenience caused by this modification. For details, please reference section I.1 of the report at http://endsoftpatents.org/pages/2008-state-of-softpatents/.

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