[Fsfe-ie] patent letter

Fergal Daly fergal at esatclear.ie
Fri May 7 18:20:58 CEST 2004

Probably a bit late now but I was thinking of firing this little rant off to
Mary Hornet and various others (maybe adapt it as a letter for the paper).

Any comments?

Is 21 years correct as the (maximum) lifespan of a patent.

Where can I get a list of people who should get my letter?



Dear Whoever,

I am a software developer who has in the past worked as an independent
developer, designing and implementing software systems for clients. I am
currently employed by an Irish software company but I hope in the future to
be able work again as an independent developer if it suits me or possibly to
start my own software company.

During the course of this work, I have developed many interesting solutions
to challenging problems in a variety of areas. Some of these solutions I
would consider to be quite clever and original (at least in that they were
created without knowledge or reference to the work of others who may have
addressed the same problem). In this respect I am no different to most
software developers, I spend a large part of my time "inventing".

Could you please explain how I and others as independent software developers
or small start up companies can possibly function in an environment with
software patents. How will it be possible for me to do a days work (not to
mention be innovative) if I must check every single line of code to ensure
there are no prior patent claims on the techniques I have used? You may
think that I will not have to check everything, because there will be a high
standard of originality, novelty and invention required for a patent to be
granted but this completely ignores the fact that what seems obvious and
well known now may have been deemed worthy of a patent many years ago. With
a lifespan of 21 years there would be an impossibly large amount of patents
to check. The reason such a vast number of software patents don't exist
already, in the USA for instance, is that most innovators have spent their
time innovating rather than filing patent applications.

Even if Europe applies and maintains far higher standards than the USA then
such a regime will still cripple all but the largest companies - those who
have created war chests of patents which they can leverage in cross
licensing deals and which they are already using to try keep smaller
innovators out of the market.

As an aside, I consider it quite unlikely that high standards will be
applied given that European patent offices have already granted thousands of
software patents. There are no real incentives for them to limit the
granting of patents to the truly novel and inventive and in fact it's the
reverse, the offices and their examiners actually profit from granting as
many applications as possible.

The only option open to independent contractors, small and medium sized
companies is to shut up shop or just close their eyes, completely ignore
software patents and hope nobody sues. The only beneficiaries of software
patents will be the big companies and the patent industry.

So, in closing, I would ask again that you please explain (just an outline)
how an independent contractor or a smaller company can function in an
environment where every piece of their work potentially infringes a multiple

I look forward to hearing from you,

Fergal Daly.

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