[Fsfe-ie] Patents letter, V4

Ciaran O'Riordan ciaran at member.fsf.org
Tue Jan 25 16:34:49 CET 2005

As mentioned in a previous mail, AFAICS our mission is to either:

> persuade our MEP in JURI (Brian Crowley) to ask parliament to restart the
> directive.

The current letter wouldn't be good for this purpose.  Crowley is well aware
of the problems and harms of software idea patents.  When we write to him,
we have to give legislative grounds for a restart, and show that this tough
measure is justified.

> persuade either our rep on the Council to make this a B-item (who's that?)

Our Council rep, not having been involved in the 2003 and 2004 lobbying, is
probably quite unaware of the guts of this issue.  The current letter should
be aimed at (and sent to) him.  The first person that can Name That Rep,
gets free software!

The V4 draft is a bit smaller again.  There's still work I want to do on it,
but here's the current content.  Let me know if I'm moving in the right

Dear Council Representative,

On behalf of Irish Free Software Organisation (IFSO), I am writing to you
regarding Directive 2002/0047 COD.  IFSO requests that this directive, "on
the patentability of computer related inventions", be changed from an A-list
item to a B-list item on the grounds that it permits the patenting of
software ideas - an outcome contrary to the stated aim of most of the
previous Council members.

The original version from the European Commission contained unclear wording
which would have allowed the patentability of software ideas.  This issue was
fixed by the European Parliament in September 2003.  In May 2004, similar
unclear wording was reintroduced 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 while it's still possible.

First I would like to summarise the two problems caused by software idea
patents, and some of the follow on harm.  I'll be brief as you may already
be familiar with this issue.  If you'd like us to expand or back up any of
these, our contact details are at the end of this letter.

Problem 1:

Every individual and business can currently write software.

The current cost of writing software is zero.  If this directive legalises
the patenting of software, then writing software would carry the risk of
patent infringement litigation.  This cost is far too high for most
individuals and businesses.  The avoid litigation, a software writer could
perform a patent search to confirm that none of the ideas they implement
have been patented.  The lawyer's fees for such searches are high, and the
software writer would still not be certain that the lawyer missed something,
or that a judge would interpret a patent the same way the patent searcher
did.  Even the cost of challenging a claim of patent infringement is too
high for most individuals and businesses.  Thus, most people would lose the
ability to write software.

Problem 2: Software patents specifically prohibit writing useful software

For a word processor to be useful, it must be capable of reading and writing
the Microsoft's Word document format.  That format is a defacto standard
that contains many ideas.  Obeying that standard is difficult for the world
outside of Microsoft because that standard is complex, ever-changing, and
always secret.  If patents were granted on ideas required to read or write
that standard, people would be prohibited from writing useful software.

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

                       Consequences of these problems

A. To protect themselves from the patent system, small and medium-sized
enterprises would have to seek the protection of a cash-rich or patent-rich
company.  It's the duty of a free market government to prevent such

B. Expanding on the word processor example from Problem 2, if Microsoft can
prohibit others from writing useful word processors, then only innovations
from that one company will reach software users.

C. Again using the word processor example: The only operating systems
supported by Microsoft Word are Microsoft Windows and Apple Macintosh.
Giving Microsoft legal control over the word processor market also
strengthens their control over the operating system market.  These problems
are not specific to Microsoft, they're just the most exemplary monopolist.

D. 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.

E. 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.  Everyone is free to examine the software's behaviour and
change that behaviour if they're not happy with it.  That means that everyone
is free to translate it into any language, adapt it to any standard,
customise it to any disability, etc.  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

                           == Closing requests ==

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.

Also, I would like to clear up a misunderstanding that still resurfaces,
and that is the line: "TRIPS requires software patents".  This statement can
end discussions prematurely but it is only one interpretation of TRIPS.
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 this does not
cover software ideas.  I suggest the EU joins them.

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.


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

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