[Fsfe-ie] Patent letter, new, long

Ciaran O'Riordan ciaran at member.fsf.org
Sun Jan 23 18:32:31 CET 2005

Here's an updated version.  The intro and section 1 A&B are mostly
unchanged, although reworded.  Section 2 is the most changed but still needs
the most reviewing.  This letter should be sent Tuesday-ish so that
recipients have time to digest it and/or get in touch with us before Jan

Did someone (Malcolm?) say we have a list somewhere of who this should be
sent to?

If not, how about:

Micheal Martin, Minister for Enterprise, Trade and Employment

Charlie McCreevy, European Commissioner for Internal Market and Services

The department of Enterprise Trade and Employment

Our MEPs[2], they're not directly involved right now, but it wouldn't hurt
  to keep the issue in their mind, and some of the new (most of them) MEPs
  might not have heard this side of the issue before.

...and who's are rep in these fishery meetings?

Here's the letter, comments sought:
Dear Representative,

On behalf of Irish Free Software Organisation (IFSO), I am writing to you
regarding Directive 2002/0047 COD.  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 subsequently
undone by the European Council.

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
should not be an A-list item.  The legislative process may even have to be
restarted, IFSO understands the gravity of this, but guaranteeing the
non-patentability of software ideas would warrant such a move.

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.  Using my own new
innovative language, or Esperanto, will not allow me to communicate with my
european representatives.  In a software equivalent, I've found that to take
part in the democratic process I must have software that can view the
Microsoft Word formatted documents that my representatives attach to their

The Microsoft Word format is a defacto standard.  The most comprehensive
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 their document format standards are complex,
ever-changing, and always secret.  If Microsoft is allowed to patent one or
more of the ideas required to read or write their defacto standards, the
task of providing a compatible alternative would change from difficult to
illegal.  Incompatible alternatives are as useless as Esperanto.

IFSO's first reason for maintaining the exclusion of software ideas from the
patent system is that patent legislation must not prohibit people from
writing software to use standards, both public standards and defacto

1.B. Unknown use of old ideas

The second issue is that making the patent system a part of the software
writing process would be prohibitive to most individuals and businesses.

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 machines or pharmaceuticals.  The patent costs are
enough to prevent the general public from manufacturing their own washing
machines and pharmaceuticals, 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.  The ability to write software, like the
ability to write a book or a letter, is democratised, it's within the
ability of any individual or business.

So IFSO's second reason for maintaining the exclusion of software ideas from
the patent system 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 insignificant.  They are important still.

A. Software idea patents would be particularly prohibitive to free software.
Also called "libre software" or "open source software", free software is
software that comes with permission for all to modify and redistribute.
Because redistribution is not restricted, counting the number of circulating
copies is impossible.  This would make it particularly to obtain a patent
license since most licenses include per-copy fees.  The second problem is
the free software is usually distributed non-commercially, and always comes
with permission for others to distribute [I can't finish this sentence, will
come back to it]

In 2003, the European Commission's Information Society Initiative reported
that free software "for the European software industry - somehow [free
software] may be a proverbial 'second and last chance'".

B. The costs of the patent system would 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.  One of the few interventionist duties of a free market government
to prevent such feudalism.

C. Expanding on the above situation (1.A) of how patent could require people
to use Microsoft software in order to view Microsoft Word formatted
documents: If I must use Microsoft Office, then I also must use the
Microsoft Windows or Apple Macintosh operating system.  No other operating
systems are supported.  Thus, 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.  This
monopoly situation would be legal too, so it would be difficult for
governments to step in to resolve it.

D. Again using Microsoft as an example, if expanded patentability creates a
situation where the only useful office suite is the one owned by Microsoft,
then it follows that the only innovations that could usefully reach the
public are the innovations of that one company.

E. The patent costs mentioned above would increase software production
costs, which would naturally end up at the purchaser.  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 to users.

F. 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 (aka the
"InfoSoc" directive).  No activity is currently restricted by both copyright
and the patent system.  Applying both restrictions to software writing would
create a very hostile environment for innovation.

G. We should not repeat mistakes.  On this topic we are lucky to have the
hindsight of the USA to learn from.  The 2004 US Federal Trade Commission's
report on patents said this about software idea patents:

 "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."  (The report gave no redeeming qualities.)

H. Less than 30% of the software idea patents received applied for in the EU
are from european individuals or businesses.  It's the USA, and to a lesser
extent Japan, that wants to patents for software ideas from the EU. [must
find actual number, on ffii.org.uk IIRC] Patents are wanted by big
businesses, and those under the pressure of big businesses (such as start
ups hoping to get bought).  The EU doesn't have any of the worlds big
software businesses.

I. Patents are currently awarded for trivial ideas.  This is a core problem.
If even one software idea patent is granted, the owner or licensee can make
their defacto standard rely on it and there for exclude all others from
writing useful alternatives.  The ease at which patents are granted only
aggravates the problem.

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
technology".  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. Closing requests

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 cannot
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 reinterpreted, 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.

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

Contact us a committee[at]ifso.ie, meet our folk in IRL or BXL, etc.

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

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