[Fsfe-ie] Re: Conversation with Mrs. Doyle last week

[Niall Douglas]

My apologies for getting back to you so late. I went down with a 
fever of some sort which lost me a week. On my telephone conversation 
with Mrs. Doyle last week she suggested I email this address with 
some proposed amendments to the upcoming directive on patentability 
of computer implemented inventions.

By now, you should have received my letter outlining why software 
patents have the opposite effect than manufacturing patents. I 
finally managed to source a copy of the directive in its full form 
and below are my thoughts. I have CC-ied this to MEP Brian Crowley 
and MEP Dana Scallon who have both expressed interest in hearing my 
proposed amendments. I have furthermore CC-ied this to the Irish free 
software mailing list whose main purpose recently has been to 
campaign against software patents.

Firstly, let me make absolutely clear that any patenting of the idea 
behind software (US-style software patents) is a thoroughly stupid 
idea. The EuroLinux petition to the EU calling for a ban on software 
patents exceeded 140,000 signatures which I call no small number. 
Furthermore almost every computer programming luminary in the world 
(and some thirty European luminaries), those who have been the lights 
guiding innovation - they ALL are strongly opposed to US-style 
software patents. For the EU to ignore this and press on regardless 
shows an amazing lack of concern for the views of the voters, or 
worse the arrogance to think that so many well-educated professionals 
in the subject are mistaken or wrong.

Any patenting of software should patent the implementation, not its 
concept or idea. Obviously this covers some of the ground of 
copyright, but then I've always failed to understand why anyone 
thinks book-based copyright law created several hundred years ago is 
suitable for computer software. Unlike books, software can be copied 
for zero cost and also unlike books, software is an engineering 
solution solving problems. Therefore it is totally unlike books and 
copyright is unsuitable. Computer software really needs its own and 
totally separate legal framework to regulate it, otherwise the 
historical abuses of the consumer by software companies will merely 
get worse with time.

For example, IBM has patented any use of a menu system in computer 
software. That means anywhere at all anyone for the next ten years or 
so (the patent was for 20 years, as TRIPs mandates) must pay 
royalties to IBM. What's best of all is that IBM didn't invent a menu 
system at all, they patented it five or so years after it became 
commonly used and have used it a number of times to crush 
competitors, mostly recently last week with SCO - because ANY piece 
of non-trivial software will contain a menu system.

To give you an idea of what this legislation means, if the inventor 
of the word processor had patented it back in 1980, there could have 
only been ONE word processor by ONE company until three years ago. 
Most certainly that word processor would have been awful and computer 
software would not have evolved anything like as quickly as it has.

However, my rant aside. From what I understand, the EU has decided 
that software patents must be, so this email is about trying to 
lessen the inevitable negative consequences. You can read other MEP's 
& SME's thoughts on the directive at http://gnu-
friends.org/story/2003/6/25/03633/3084/ and can reach a coordinating 
email address for Irish MEPs against software patents at the email 
address: europarl-ie at ffii.org.

First my more radical amendments which don't seem to have already 
been proposed:

1. The EU should set up an INDEPENDENT board of experts in software 
to vet each software patent application for the innovativeness 
requirements of the directive. They should be paid for by the patent 
fee.

Reason 1: The EPO is useless at vetting software patents. Most of the 
software patents on its books patented technology which was clearly 
prior art and in most cases had been in common use for years and 
sometimes decades. Worse still, almost none of the software patent 
holders actually invented the technology themselves. If you want to 
see just a small sample of the complete lack of vetting procedure, 
see http://swpat.ffii.org/patents/samples/index.en.html

Reason 2: The directive sets no detail as to what constitutes an 
"innovative step". This shelves that responsibility onto the 
judiciary and hence SME's in legal costs. Now, to quantify what is or 
is not innovative is hard and varies with each application, so really 
an expert group is necessary to consider each and every application.

Reason 3: Spending a few hundred thousand euro a year on paying the 
expert board is a drop compared to the potential savings of hundreds 
of millions of euro in legal fees paid by SME's as they contest 
patent infringement suits brought by US multinationals against them 
in courts across the EU.

2. All existing patents registered at the EPO should become null and 
void though if their holders choose, they may reapply under the new 
criteria and if successful, they get a new patent in preference to 
any newer applications.

Reason: Same as above. Plus all the existing registered patents which 
are mostly by US software multinationals, many of which are just 
plain economic warfare tools for imminent use against EU SME's, can 
be scrubbed of all the bad patents (at least 75% of them).

3. All software patents should not exceed five years in length. Seven 
at the absolute max. Twenty is far far too long. I know TRIPs says 
they must be twenty years, but there must surely be a way around this 
(eg; ignore it, like the US does to so many other international 
agreements they don't like)

Reason: Patent duration should be determined by length of business 
cycle (read US founding father Thomas Jefferson's work). A 
manufactured good like a car may be ten years or so so patents in 
that area should be double that cycle. In software, the business 
cycle is around two to three years, so double that is five years.

I'll just add that the EU needs to fix the EPO which is obviously 
broken. I know it stretches well beyond EU borders, but the EU could 
simply ratify a law making EPO patents useless and setting up its own 
patent office.


Ok, now the amendments which have already been tabled. I broadly 
agree with all of the amendments proposed by the committee on 
industry, external trade, research & energy but of those, we must 
prioritise:

1. Member States shall ensure that whenever a patent claim names 
features that imply the use of a computer program, a well-functioning 
and well documented reference implementation of such a program shall 
be published as a part of description without any restricting  
licensing terms

Reason: You can filter out "patent land grabs" as commonly practised 
by software multinationals who patent thousands of promising areas of 
software development and yet further develop only a few. If however 
they have to write a reference implementation, not only do you 
strongly encourage the company to further develop the patent but you 
also substantially lessen the patent being used to prevent further 
development by competitors.

2. Member States shall ensure that wherever the use of a patented 
technique is needed for the sole purpose of ensuring conversion of 
the conventions used in two different computer systems or network so 
as to allow communication and exchange of data content between them, 
such use is not considered to be a patent infringement.

Reason: Already in the US companies such as Microsoft patent 
innovations for their Windows operating system with the intent to 
prevent a similar innovation being implemented on 
competing operating systems such as Apple MacOS or Linux. This 
permits them to further 
extend their monopoly and exclusion of competition (and seeing as the 
EU is about to penalise 
Microsoft for anti-competitive behaviour, let's not hand them another 
loaded gun!). In fact, one 
wants to go further than this amendment and make use of any patented 
technique in the 
achievement of interoperability between software non-infringing.


I also broadly agree with the amendments from the committee on 
culture, youth, education, 
the media and sport. Indeed, across a number of lists of amendments I 
see the same issues 
cropping up again and again.

One of these common issues is providing some sort of registrar of 
abuses of the patent 
system to be logged so that when the three year review stage arrives, 
amendments can be 
tabled to prevent such abuses. I cannot see why it is not easy for 
the EU to provide a web site 
where such abuses (which will happen) can be entered. Then hopefully 
the European 
Parliament will realise what an ill-advised law this is, and enact 
legislation permanently 
banning software patents within the EU now and forever.

Hence, there should also be an amendment to the effect that the 
commission shall set up a 
web site for public access where patent abuses may be registered. A 
copy of the full list shall be taken three months before the three 
year review session and a report produced from them recommending 
changes including the possibility for full repeal of software patents 
within the EU.

If you wish to contact me, use the above email address or 021 
4872739.

Yours sincerely,
Niall Douglas