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

Ian Clarke ian at locut.us
Mon Jan 24 17:24:50 CET 2005

Sorry I'm not being clear.  I guess I disagree with the emphasis you 
are placing on the standards issue, I think it is more a symptom than a 
cause.  Were the standards issue to go away (if, for example, patents 
were not permitted on standards), then I still think software patents 
would be a big problem.

The fundamental reason software patents are bad is that the cost to 
society of granting a 20 year monopoly greatly outweighs the benefits 
of providing this incentive to innovators.  My essay tries to elaborate 
on this point which is why I mentioned it.  This is essentially the 
point you are making in "Reason 2".

So, my suggestion, and sorry once again for making it in such a 
confusing way (I was having a bad thought day), is that Reason 2 
becomes Reason 1, and Reason 1 gets moved into the "follow-on harm" 


On 24 Jan 2005, at 16:01, Ciaran O'Riordan wrote:

> 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.
> http://swpat.ffii.org/log/intro/index.en.html
> Let me know if it's ready or nearly ready to send, or give
> corrections/complaints/etc.
> ----8<--------------------------------------
> 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
> representatives.
> 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
> alternative.
>                   == 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
>     others
>                            == 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
> them.
> 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.
> ----8<--------------------------------------
> 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
> send.
> -- 
> Ciarán O'Riordan
> http://www.compsoc.com/~coriordan/
> Free Software in Ireland: http://ifso.ie
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