[Fsfe-ie] another letter

Justin Mason jm at jmason.org
Fri May 7 21:39:03 CEST 2004

OK, I'm planning to send off this one. ;)  Anyone see any probs?
In particular, I'm not sure it's the competitiveness council who'll
be signing off...


 To: Mary Harney, President-in-Office, EU Competitiveness Council
 Cc: Patents staff, DETE Intellectual Property Unit
 email: info at maryharney.ie, helen_curley at entemp/ie, orla_odowd at entemp.ie,
         jacob_rajan at entemp.ie

To whom it may concern,

I write as a software developer who has worked in the field, in Ireland
and the US, for the past 18 years. I have extensive experience in
developing both commercial, proprietary software, and open-source
software. I have worked at IONA Technologies, Ireland's biggest home-grown
success in the software industry; and nowadays, I am a lead developer on
"SpamAssassin", an open-source project which is also one of the most
successful spam-filtering products on the market.  In the latter case,
myself and a colleague started a SME to commercialise some of this work,
with great success.

In all of these situations, I have come up with procedures, algorithms
and implementations that I would consider inventive and innovative.

I have never found a situation where patents would have been necessary to
protect these products, over and above the alternative Intellectual
Property techniques of copyright and trademarking.

However, I have repeatedly found myself in situations where, in order to
implement parts of these products, I would have to place the company, or
*myself*, *personally*, in the open source case, in danger of litigation
due to infringement of software patents.  This has resulted in situations
where competing companies are therefore given a monopoly on software that
implements these (often trivial) features, despite my independent
'inventing' of those features -- without even any knowledge of these
'competitor' products.

In some cases, it's unclear if the 'competitor' products even exist, or if
the patenting company just thought something up without ever implementing
it, since there's no sign of a product on the market with those features.

In my experience, an overwhelming number of software patents, in both the
US PTO and the EPO's database, are insufficiently 'inventive', considering
the unique nature of software development -- where the majority of work to
develop a successful software product takes place in the implementation
rather than the 'ideas', and where the pace of progress and the changing
'state of the art' is hundreds of times faster than in other industries.

As a result, I was pleased when the European Parliament ignored the
influence of the EPO and various pro-patent lobbies, and came up with a
proposed text that clarified the situation regarding software patents in

I now read that the Irish EU Presidency, and the Council of Ministers, has
ignored the democratic process in the European Parliament, and has instead
reverted to the original, strongly-pro-software-patent text; in fact,
reports seem to indicate that this text will have even *lower* limits
on what can be patented.

If this is passed into law, it's unclear whether it will be possible for
myself and my colleagues in the software industry to continue developing
software in Ireland and other European countries, unless we work for one
of the large US multinational companies who can afford to work out
cross-licensing deals or fend off patent litigation, such as IBM, Sun and

Developing new and innovative software as an independent open-source
developer, or starting a SME, will become a risky endeavour.  My work on
SpamAssassin in particular will become exceedingly risky, since
spam-filtering is a "hot topic" right now, and it's known that several
companies are quietly patenting as many filtering tricks and techniques as
they can.

I fail to see how that benefits either myself, European competitiveness
in the software industry, or the emerging open-source paradigm.

In fact, I fail to see how I could continue to work in Europe at all, if
it means I will run the risk of personally facing a multi-million-euro
patent-infringement lawsuit for performing my job, or even my after-hours
open-source hobby.

Please reconsider this action, before you destroy the competitiveness and
innovation in the European software industry, and drive the innovators

Yours Sincerely,

Justin Mason.

More information about the FSFE-IE mailing list