[Fsfe-ie] Patent letter, new, long

Ciaran O'Riordan ciaran at member.fsf.org
Sat Jan 22 14:07:55 CET 2005

Hi all,

It's not certain whether our favourite directive will be voted on in
Monday's fisheries meeting or not, but if this letter is ready, maybe it
should be delivered on Monday morning either way.  If it'll be printed, that
means it has to be ready to print on Sunday afternoon.

My internet situation isn't what I wish it would be, so I'd rather stick to
this list than use the wiki.  The letter's not finished, so giz a hand.

Section 2 still needs work: editting, reordering, additions, and removals.
This letter is already a tad over 4 pages in OpenOffice, so please don't
suggest many additions.  I'd like to get it down to 4 pages.

This was written offline so there may be dates/figures/quotes that have to
be confirmed or fixed.

(I hope no Esperantists are offended)


Dear Representative,

On behalf of Irish Free Software Organisation (IFSO), I am writing to you
regarding Directive XXX.  At issue is that this directive, as written by the
European Commission, would make software ideas patentable.  This was fixed
by the European Parliament, but the EP's work was undone by the European

IFSO believes that the European Council was deceived by the wording of the
replacement amendments they adopted, and IFSO would like this break down in
democracy to be fixed.  This directive needs further work, and it certainly
isn't in a state where it can be voted on as a minor item in a fisheries

The content of this letter is as follows:

1. Fundamental reasons for excluding software ideas from the patent system
 A. Willful use of old ideas
 B. Unknown use of old ideas
2. Important secondary reasons
3. Misconceptions
4. Closing request

1.A. Willful use of old ideas

Standards are to software what languages are to humans.  Inventing my own
innovative language, or learning Esperanto, is a waste time if I want to
communicate with my european representatives.  Much the same, to take part
in the democratic process, I've found that I need software to view the
Microsoft Word formatted documents that my representatives attach to their

The Microsoft Word format is a defacto standard.  The most viable
alternative is the free software OpenOffice.org suite.  Most people have
never heard of it.  Providing an alternative to Microsoft Office is very
difficult because the document format standards followed by Microsoft's
software are complex, ever-changing, and always secret.  If Microsoft is
allowed to patent even one idea required to read or write their defacto
standards, what is very difficult now will become legally prohibited.
Alternatives will become as useless as Esperanto.

So IFSO's first requirement is that patent legislation must not prohibit
people from writing software to use standards, both public standards and
defacto standards.

1.B. Unknown use of old ideas

The second fundamental issue is that individuals and businesses must remain
free from the uncertainty that their software ideas might already be
patented, or in the patent application process.

Patent searches, litigation insurance, license negotiation, and infringement
litigation are just a few of the costs in the design and manufacture of
products such as washing mashines or pharmacuticals.  The patent costs are
enough to prevent the general public from manufacturing their own washing
machines and pharmacuticals, but this is not a problem since the lack of raw
materials and a factory would prevent the general public from manufacturing
these items anyway, even if there were no patent costs.

The same is not true for software.  Writing software, like writing a book
(or a letter), is within the ability of any individual or business.  It is a
democratised act.

IFSO's second requirement is that the current ability of all individuals and
businesses to write software and make it available to others, both
commercially and non-commercially, must not be taken away by patent

2. Important secondary reasons

The following reasons have been labelled as secondary because the
fundamental reasons would stand even if all the following were fixed or
judged to be inconsequential.  The following are important none the less.

A.  Law is best when it is clear.  There are few opportunities to write
legislation that has a sharp line between regulated and unregulated.  Here
is such an opportunity: I cannot write hardware, and computers cannote
read/run hardware.  IFSO requests that writing and running software, should
not open anyone to patent litigation.  Patent inflationists would like fuzzy
law which can be reinterpretted, or which can enforce an interpretation by
the cost of contesting a bad patent in court, or the threat of litigation,
the cost of which is too high for individuals and for most businesses.

B.  The costs of the patent system are enough to prevent Small and
Medium-sized Enterprises (SMEs) from independently entering the market.
Their remaining option would be to seek to be bought out by a cash-rich or
patent-rich company.  It is the duty of a free market government to prevent
such feudalism.

C.  Dealing with software idea patents is especially problematic for free
software.  "Free" in the freedom sense, not cost.  Also called "libre
software" or "open source software".  Free software comes with permission to
make and distribute copies, so regulating copying in order to pay a per-copy
patent license is not possible.  In 2003, the European Commission's
Information Society Initiative reported that free software may be a second
and last chance for a european software industry.

D.  Expanding on the above situation about patents causing people to require
Microsoft software in order to view Microsoft Word formatted documents: If I
must use Microsoft Office, then I must be using Microsoft Windows or Apple's
Macintosh operating system.  No other operating systems are supported.
Thusly, Microsoft's defacto standard document formats would maintain their
operating system market dominance and exclude new alternatives as well as
existing alternatives such as GNU/Linux.

E.  Again using Microsoft as an example, if patents mean that only
Microsoft's software is useful in the Office suite realm, then the only
innovations that can reach the public are the innovations of that one

F.  The patent costs mentioned above would increase software production
costs.  These would naturally end up at the consumer.  Since Ireland, and
indeed the EU as a whole, is a net importer of software, it makes negative
sense to increase the cost of software.

G.  Expanding the scope of patentability to include software ideas is beyond
the remit of this directive.  [add quote]

H.  Software already has legal restrictions in the form of copyright.  Many,
including IFSO, feel that the restrictions of copyright are too great,
particularly in the aftermath of the European Copyright Directive 200N.  No
activity is currently restricted by both copyright and the patent system.
Software writers do not deserve this punishment.

I.  Less than 30% of the software idea patents received applied for in the
EU are by european individuals or businesses.  It's the USA, and to a lesser
extent Japan, that wants to patent software ideas in the EU. [must find
actual number, on ffii.org.uk IIRC]

J. The US Federal Trade Commission's patent report said:

 "Many panelists and participants expressed the view that software and
  Internet patents are impeding innovation. They stated that such patents
  are impairing follow-on incentives, increasing entry barriers, creating
  uncertainty that harms incentives to invest in innovation, and producing
  patent thickets."

It gave no redeeming qualities.

3. Misconceptions to be cleared up

#1: "TRIPS requires software ideas be patentable"

This bluff assumes the listener won't check TRIPS.  In fact, article 33 of
TRIPS requires that (get actual quote)"patents be granted for all fields of
technolgoy".  Many TRIPS signatories have legislated that software ideas are
not patentable.  I suggest the EU joins them.

#2: "If software ideas are unpatentable, every innovation in any device that
 uses software will be unpatentable"

IFSO's request is that software writers and users should not be at risk of
patent infringement.  This will not interfere with whether washing machine
designers or manufacturers would be at risk of patent litigation.

4. Closting requests

IFSO was pleased in October 2003 when the European Parliament adopted a
series of amendments which clarifed the non-patentability of software

Contact us a [address], meet our folk in IRL or BXL, etc.


Ok, that's what I have.  Kinda long, and actually there's things I'd like to
add to it.  It's not ready or polished or even finished but I wanted to get
it onto the list while I continue working on it.

Ciarán O'Riordan
Free Software in Ireland: http://ifso.ie

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