[Fsfe-ie] Patent letter, new, shorter, V3

Ciaran O'Riordan ciaran at member.fsf.org
Mon Jan 24 17:01:01 CET 2005

Right, version 3, condensed (~20%).  I've shortened Sections 1 A&B, cleaned
up Section 2, deleted Section 3, and done a bit on Section 4 (where the
TRIPS argument now lives).

I still don't understand what Ian's trying to tell me.  If someone else
does, please beat me over the head with his point.

I just noticed FFII have a good short intro to the whole software idea
patent problem.

Let me know if it's ready or nearly ready to send, or give

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 extend the patent system to
include software ideas.  In September 2003, amendments fixing this issue
were adopted by the European Parliament by an average majority of 75%,
however, in May 2004, the EP's work was undone by the European Council.

IFSO believes that the members of the European Council were deceived by the
wording of the replacement amendments presented to them, and IFSO would like
to see this directive fixed again.

First I will give the two fundamental reasons why software ideas must remain
unpatentable.  Then I will give some of the follow-on harms that the patent
system would cause software writers and users, and I'll end with IFSO's
requests and our contact details.

            == Reason 1: Use of old ideas to follow standards ==

Writing a word processor that can read and write Microsoft Word format
documents is very difficult because Microsoft's standard is complex,
ever-changing, and always secret.  But a word processor that can't read and
write that defacto standard, is practically useless.  Microsoft Word format
is a defacto standard, in business and in corresponding with European

If Microsoft is allowed to patent one of the many ideas that a piece of
software must use in order to read or write that standard, they would have a
legal barrier with which to prohibit anyone from writing a compatible

                  == Reason 2: Unknown use of old ideas ==

Writing software means putting ideas into a simple language that a computer
can understand.  There is no cost to writing software.  The ability to write
software and make it available to others, is currently within the ability of
all individuals and businesses.

The patent costs involved in the design and manufacture of products such as
washing machines or pharmaceuticals are enough to prevent most individuals
and businesses from manufacturing these products for themselves.  This is
not a problem since the lack of raw materials and a factory would prohibit
these actions anyway, even if there were no patent costs.

The same is not true for software.  Introducing a need for patent searches,
litigation insurance, license negotiation, and infringement litigation,
would prohibit most individuals and businesses from writing software.

In summary, patent legislation must not:
(A) Prohibit software writers from obeying standards, both public standards
    and defacto standards
(B) Take away the current ability for all individuals and businesses to
    write software, commercially or non-commercially, for themselves or for

                           == Follow-on harm ==

The above reasons would stand even if all the following harms were viewed as
fixable or insignificant.  The following are important none the less.

A. Software idea patents would be particularly prohibitive to free software.
Sometimes called "libre software" or "open source software", free software
is software that gives every recipient royalty-free permission to modify and
redistribute it.  The lack of mandatory royalties, and the (usually)
non-commercial distribution mechanisms, would make it particularly difficult
for free software developers to obtain patents, ensure they're not
infringing a enforceable patent, or license patents from others.

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 the protection of a cash-rich or patent-rich
company.  One of the few interventionist duties of a free market government
is to prevent such feudalism.

C. Expanding on the word processor example (from Reason 1): If I must use
Microsoft Word, then I also must use either the Microsoft Windows or Apple
Macintosh operating system.  No other operating systems are supported.  This
defacto standard document format would therefore restrict people's choice of
operating system as well as their choice of word processor.  Software has
enough problems with monopolies, the ability to patent software ideas would
worsen this situation, and the monopolists actions would be legal.

D. Again using the word processor example, if the only useful word processor
is the one written by Microsoft, then the public will miss out on the
innovations of every other software writer.

E. The patent costs mentioned in Reason 2 above would increase software
production costs, naturally these would trickle down to software purchasers.
Since Ireland, and even the EU as a whole, is a net importer of software, it
makes negative sense to increase the purchase cost of software.

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).  Adding patents to the burden on software writers
would be a restriction too many.

G. In the USA, the Federal Trade Commission's 2004 report on patents said
this in it's conclusion on 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 at all.  We are extremely lucky to be
able to learn from the mistakes of another economy that introduced software
idea patents.  It would be folly to discard this hindsight.

                           == Closing requests ==

In closing, I'd like to clear up one piece of misinformation that is still
resurfacing, and that is the line: "TRIPS requires software patents".  This
statement can end discussions prematurely but it's a bluff that assumes the
listener won't check TRIPS.  In fact, TRIPS Art 27 says: "patents shall be
available for inventions in all fields of technology, provided that they are
... susceptible industrial application".  Many TRIPS signatories have
legislated that software ideas are not patentable.  I suggest the EU joins

Here we have an opportunity to draft clear law.  Software and hardware are
not the same.  I cannot write hardware and computers cannot run/execute/read
hardware.  IFSO requests that writing and running software be excluded from
the patent system.

The amendments of the European Parliament were clear and well thought out.
Some minor textual clean up would be required, but any attempt to compress
their amendments will only yield a result such as what happened in the
European Council: loopholes would be left open which could be exploited to
obtain patents on software ideas.

IFSO has been working on this directive since mid-2003, and we will do our
best to provide comments and advice on various amendments in the run up to
any further votes or meetings.  In the mean time, we urge that this issue be
removed from the list of A-items.  If you would like to contact IFSO, we can
be best reached by email: committee[at]ifso.ie.

We also have a correspondent in Brussels who would be interested in taking
part in any in-person meetings.

Now, stick that in your pipe and smoke it.

I'm not 100% happy with that last line.  It's open to removal.

I should be back online again later tonight.  Sending this on Tuesday night
would be great, but if there isn't consensus soon it looks like a Wednesday

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

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