A new movement is afoot to end the alleged madness of patenting software. But could this be a slippery slope to ending patents altogether – ignoring the research, resources and time spent coming up with innovations?

A recent High Court ruling in the UK has put the spotlight on this simmering issue. The High Court ruled that Research in Motion (RIM), the company behind Blackberry mobile devices, will not have to pay patent license fees to Visto, its e-mail software competitor, on the grounds that Visto’s UK patent was invalid. Although the Court stated that RIM’s technology did infringe on the patent, the patent was invalid because it was a computer program and was not inventive enough The Court found Visto’s patent – for a “method for synchronizing electronic mail across a network” – to be obvious and not worthy of a patent.

At about the same time that this ruling was made, a new organization called ESP (End Software Patents) was launched to 1) assist 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) promote public education aimed at passing laws to protect software from patent law.

Sponsored and funded by leaders of the Free and Open Source Software movement, ESP hopes to attract support from the wider community of businesses, financial institutions and universities that have all been hit in recent years by lawsuits over software and business-method patents.

The End Software Patents project believes that the current problems with the U.S. patent system – including software patent litigation tat costs US companies $11.2 billion annually – are due to the elimination of restrictions on what is patentable, rather than processing and examination details. The group and its advocates believe that the current business model of patenting has reached the level of the absurd, where one can acquire a patent for a simple “click on something and then something happens” idea and then hire expensive lawyers to sue everyone who would dare steal this idea.

According to Ben Klemens, executive director of ESP, "Software patents endanger both software developers and businesses, ironically stifling the very innovation that the U.S. patent system was intended to foster. 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."

Brad Feld, Managing Director at Foundry Group, added, "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."

But not everybody is celebrating. Today, even with all the hoopla, very few corporations endorse the goal of abolishing software patents and it remains a radical position. Though patent reform s sorely needed and many information technology companies, like IBM, Hewlett-Packard, and Cisco, are publicly championing it, they only favor improving the quality of software patents, not abolishing them. The reason – there are an estimated 200,000 active, issued software patents in the United States, and most major tech companies have acquired, at considerable expense, substantial portfolios of them. Moreover, drawing the line between hardware and software is no longer easy, and many patents relate to processes that were once accomplished using hardware but are now accomplished using software. Many feel that the modernization of the medium should not deprive companies of recognition for its inventions.

So where does this leave the debate? On the one hand, the U.S. Supreme Court has never ruled on the patentability of software, and at one time the predominant legal assumption was it amounted to nothing more than mathematical algorithms – considered laws of nature and therefore unpatentable. (This gradually changed with U.S. Court of Appeals for the Federal Circuit decisions that suggested that even if pure software itself was not patentable, software when loaded onto a general-purpose computer created, in effect, a new physical device that could then be patented.)

On the other hand, after one has spent a lot of time designing, developing and testing new software, should one not be able to patent it and just give it away for free?

It was a court ruling that added software patents to the system, apparently with no exact definitions and boundaries. Perhaps it’s better to go back to the drawing board than forever rely on courts to settle these disputes.