[Fsfe-ie] patent letter to be sent thursday night (v2)

Ciaran O'Riordan ciaran at member.fsf.org
Thu May 6 07:04:51 CEST 2004

Here's another go.  This is 2 and a half pages in word-processor format, I
think the finished version should be 3 pages.  Some examples of current
patent abuse would be good, quotes from the FTC report would be good, or a
paragraph of pointers to other good sources of info would be good?

This isn't a final version, spelling mistakes don't have to be pointed
out, better wordings would be good though, and two extra paragraphs
would be good.  There are probably a few sentences that could be
optimised out.

Anyway, it's better than yesterdays yolk, let me know what you think:


Dear Reader,

  I am writing on behalf of Irish Free Software Organisation (IFSO)
concerning the EU Directive COD/2002/0047 "on the patentability of
computer implemented innovations".

  On September 24th 2003, we were pleased that a large majority of the
European Parliament voted for a set of amendments which clearly
exclude software innovations from the patent system.  We were
particularly glad that this majority included all of the 11 Irish MEPs
that voted.  In this letter I will outline why it is imperative that
Irelands representation on the Commission uphold the decision of the
Irish MEPs and the plenary.  I've kept the letter to a readable length
but IFSO would welcome further dialogue on this issue and will make
itself available to answer any questions you may have.

   Why should computer software be excluded from the patent system

The benefit of software over hardware is that software development
consumes no raw materials, so everyone is free to create as much
software as they like, every individual and every business is free to
develop, to innovate, and to compete.  These three things: software
development, innovation, and competition exist because there are no
limits on who can write software.  "Software patents" is the idea of
creating artificial limits.

Software is easy to develop because it can ignore the limitations of
the physical world.  For this reason, people can create very complex
software packages which incorporate hundreds or thousands of ideas.
Most new software is a combination of new and old ideas.  A word
processor with a spell checker must incorporate a lot of standard word
processor ideas - otherwise it wouldn't be a word processor.  This
type of incremental innovation is how software has progressed for the
last half-century, and most people would agree that software has
progressed very far in that time.

In contrast, the one software innovation that has produced the
greatest social benefit in the last decade, is the World Wide Web.
This is a completely unpatented innovation, which has fostered the
highest levels of competition and innovation in the history of

If individual software implementable ideas become ownable, that
process of incremental innovation will have to stop.  To build a
spell-checking word processor, you'll need to get permission from the
holder of the word processor patents, and you'll need to pay for the
right to write your spell-checking word processor.  Incremental
development of software would become a legal minefield, and many
software innovations would never reach the market.  And it doesn't
matter if a programmer thinks of a patented idea on his/her own - it's
still an illegal infringement.

Software patents would be very useful for companies which currently
have dominant market positions.  Meanwhile the programmers of Europe
are prohibited from developing useful software, and the businesses of
Europe have to purchase software from an uncompetitive foreign market.

Incompatibility is the biggest problem of the software world at the
moment.  Software developers must make their software compatible with
the market leader so that software users have the option of migrating.
If new packages cannot read and write the files of the market leader,
there is no compeition.  If market leaders could patent some
techniques required to read or write their file formats, competition
in many fields would become impractical.

In some fields of development, it is hoped that the barriers created
by patents will lead to new solutions to problems (lateral
innovation), but when trying to read or write data in an arbitrary
format, there are many situations where only one technique can be
used.  When companies use such techniques, lateral innovation will not
be encouraged because it would be of no use.

Of course, some large companies would benefit greatly from these legal
tools for preventing competition - that's why they're pushing for this
change in the EPO.

Looking at the USA:

In America, large software developing companies find it impossible to
develop new software without infringing eachothers patents, so
companies with large patent porfolios cross-license with eachother.
This situation protects the large companies from the harm of software
patents, but completely locks out small and medium enterprises, and

When the US ruled that software patents would be legal, they didn't
have the benefit of being able to study how other economies handled
software patents.  Recently, more than a decade after software became
patentable, the US Federal Trade Commission have released a damning
report on what effect they have seen with software patentability.

The US is seeing a new problem in the last three years in the form of
"software IP law firms", specialising in "monetising software patent
assets".  The firms buy unused software patents, and sue whoever they
can.  The typical targets are small businesses which can't afford to
risk defending themselves in court.  They can make a lot of money from
sueing software development companies, and they face no risk because
they don't development any software of their own.  This parasitic form
of business is legal in the US, but it is having terrible effects on
software development.

Laura Creighton, a european venture capitalist, gave testimony at a
software patents hearing in the European Parliament in May 2003. She
said that investing in small companies would be risky if software
patents existed because a cash injection would simply draw the
attention of the above mentioned law firms.  Without such cash
injections, companies will find it harder to make the transition from
small to medium sized enterprise. By impeding the growth of successful
small companies, competition and employment will be hurt, and many
innovative products won't reach the market.

An even more recent problem is "submarine patents": Patents that are
filed but not enforced for a decade, then the owner starts fleecing
people (Like Microsoft are doing with the FAT filesystem patents).
Another *great* example is the recent jpeg patent.  31 users of a web
standard are being sued for using that standard - and it's thought
that some companies are were singled out because they spoke out
against software patents - so selective enforcement is being used to
attempt to silence people.

The EU economy, and the security of Europes governments, industries,
and citizens is increasingly dependent on software.  For this reason,
the EU must retain control of it's software systems: it must be
permitted to develop it's own.

Free Software, also known as "Libre Software", or "Open Source"

Free Software is software that comes with royalty-free permission to
run, study, modify, copy, and redistribute the software.

Instead of charging users for rights which cost nothing to give, Free
Software businesses get revenue from customisation, distribution,
setup, and support of the software.  The European Commissions'
Information Society Initiative recently released a report on "Free /
Open Source Software F/OSS", which says:

    ``On the provider side, F/OSS creates new opportunities for
    software and service providers, which may be a unique opportunity
    for the European software industry - somehow this may be a
    proverbial "second and last chance".''

In a market encumbered by software patents, development of Free
Software would be severely restricted.  Due to it's innability to
force per-user fees, or to restrict the number of copies that a
recipient makes, it would be almost impossible for Free Software
projects to get licenses to use patented ideas.

Ciarán O'Riordan
Irish Free Software Organisation: http://ifso.ie

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