[Fsfe-ie] Re: Conversation with Mrs. Doyle last week
s_fsfeurope2 at nedprod.com
Sun Aug 17 17:50:03 CEST 2003
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
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
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,
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
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
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
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
Parliament will realise what an ill-advised law this is, and enact
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
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