[Fsfe-ie] Patent consultation

[Glenn Strong]

Hi everyone,

Just to keep you informed, IFSO responded to the European Commission's
request for consultation on the community patent (see
http://consultation.ffii.org/). As well as providing our own statement
(which will be on the web site shortly) we endorsed the FSFE
position. Thanks to Ben and Ciaran for all their work on this one.

The actual statement sent was:

Dear Mr Nooteboom,

IFSO welcomes the opportunity to comment on the EU's Community Patent
project.  We represent the interests of Free Software authors and users
in Ireland.  Free Software is software whose users are free to run,
study, modify, and redistribute it; it is a large and increasingly
important part of the overall software industry in Europe.

IFSO fully endorses the responses of the Free Software Foundation Europe
on this consultation, which we attach for reference.  Our overriding
concern is that this consultation does not become a back door to the
legalisation of software patents, which would be extremely harmful to
Europe's software industry in general, and to Free Software authors and
users in particular.

An analogy may be drawn to a recent scandal in Ireland.  The facts as
they are now known are that the government had been illegally charging
elderly nursing-home residents for their care since the 1970s.  Only in
late 2004 did the issue truly come to the fore, though.  The
government's response was to attempt to pass the Health Amendment Bill,
which would have retroactively legalised these charges.  Naturally,
there was public outrage at this offensive approach, culminating in a
Supreme Court decision that the relevant sections of the bill would be
unconstitutional.  The government was thus forced to face up to the
problem and correct it, refunding money to those who were illegally
charged.

The relevance of this affair to software patents in the EU is as
follows.  For many years the European Patent Office has been issuing
software patents, in defiance of the European Patent Convention
which governs it.  It would be a mistake to attempt to retroactively
legalise the behaviour --- as would be done by the suggestion to
adopt EPO practice as de-jure regulations.  The correct response,
which IFSO urges the EU to pursue, is to address the problem
head-on, by declaring all existing software patents invalid by dint
of Article 52 of the EPC, and compelling the EPO to comply with its
mandate.

Having argued this central point, IFSO would like to augment FSFE's
responses in some areas, as noted below.

IFSO would of course be delighted to respond to further questions.

Yours sincerely,

Glenn Strong, chairman, on behalf of IFSO.




Copy of Reponse of the Free Software Foundation Europe, endorsed by IFSO
------------------------------------------------------------------------

Introduction

A proposal was made, in 2002, for a directive which would have allowed
patents on software ideas.  This was opposed by Free Software users,
consumer groups, most of European industry (SMEs), and more citizens
than usually take part in the EU legislative process.  It was also
eventually rejected by the European Parliament in July 2005.

The conclusions which lead to the Lisbon agenda were made before these
events.  The patent system(s) of Europe may have seemed ready for the
Community Patent in 2000.  Much has come to light, and much has been
learned since.

We welcome the European Commission's decision to defer the Community
Patent "until the time and conditions are ripe for that effort".  The
current time and conditions are not right for the Community Patent, but
the problems are fixable.  FSFE's specific concerned about patents is in
the field of software, and we look forward to assisting the fixing of
that problem.

FSFE would also like to note that some stakeholders with limited
resources for analysis and cross-referencing issues such as this have
opted not to respond to this question.  We therefore expect that
stakeholders with those with lower resources per-stakeholder will be
under-represented by the responses to this questionnaire.


Section 1

We agree, as the questionnaire states, that "the patent system
.. should be used ... for the benefit of all society".  Thus, like all
law, it should be applied where it benefits all society, and excluded
from where it would cause overall harm to society.

Where the questionnaire speaks of "breathing-space" for patent owners,
FSFE would like to note that non-industrial activities of citizens must
not be restricted by being designated as the exclusive "breathing-space"
of a patent holder.  That is to say that democratised acts, such as
software development and use, and the publication of information, which
society is able to participate in, should not become prohibited for the
purpose of giving "breathing-space" to patent holders.

We do not regard the list of four patent system features as being
given in order of importance.


1.1 Do you agree that these are the basic features required of the
    patent system?

On the the four proposed desirable features for a patent system, FSFE
would like to make one modification, one clarification, and one
addition.

The modification is to the first point.  FSFE does not believe that
overall objectives of the patent system should be compromised by (or
"balanced with") "the interests of the right holders".  The existence of
rights holders is an artificial measure which occurs to serve the goal
of the patent system.  Giving power of rule-drafting to a group which is
created by the rules could only yield an outcome with a clear conflict
of interest.

The only balancing to be done is balancing the harm/burden to society
with the benefit to society.

The clarification is that to make "clear substantive rules", the 21
amendments which were submitted by members of all EP parties should be
used.  We believe that the European Patent Convention is clear, however,
the actions of the European Patent Office and the expressed will of the
citizens of Europe show that it should be made even clearer by the 21
amendments being incorporated.


The addition is described in our answer to 1.2


1.2 Are there other features that you consider important?

The addition is that patent law must advance society rather than inhibit
it.  Innovation, when it can be driven by public interest - via public
participation as well as via the market, and when it is produced in a
way that the public will benefit from it, should be encouraged.

The patent system should therefore enable people to further themselves,
individually, or as a business.  This should go without saying, but
patent law proposals such as the now-rejected "software patents"
directive shows that this must be explicitly kept in mind.



1.3 How can the Community better take into account the broader public
    interest?

To better take account of broader public interest, developers of
European patent policy should look at the issues from the perspective of
all stakeholders.

It must be kept in mind that some fields of endeavour are the exclusive
domain of large companies.  The manufacture of cars and pharmaceuticals
are two examples.  For these domains, medium-to-large financial,
bureaucratic, and legal restrictions can be justified because those who
bear the burden can be expected to have the necessary financial and
legal resources.

In stark contrast, in the field of software, even small financial,
bureaucratic, or legal restrictions would cripple most developers of
software because most developers of software are individuals, small
companies, medium sized companies, or companies whose core business is
not software development.

Maximum transparency, the interests expressed by the public, and the
involvement of the directly elected European Parliament, is also
requested.


Section 2

2.1 By comparison with the common political approach, are there any
    alternative or additional features that you believe an effective
    Community patent system should offer?

Yes.  It is imperative that the separation of power, a foundation of
European democracy, is maintained - and improved when possible.  As
such, one issue that FSFE sees is that Judges on any such "Community
Patent Court" (the Judiciary) should not come from the Executive or
Legislative bodies of the patents field.  The mixing of legislative
power into the European Patent Organisation (and executive body) is
already being seen by some as the root of problems in European patent
law.

FSFE is also concerned about the transfer of patent-granting power to
the European Patent Office (EPO).  The EPO has granted many patents
contra to the European Patent Convention, and the non-legality of those
patents has been confirmed by rejection of them in national courts.
With this history, the EPO must clearly be given a more limited,
supervised, and accountable role in the patent process.



Section 3

3.1 What advantages and disadvantages do you think that pan-European
    litigation arrangements as set out in the draft EPLA would have for
    those who use and are affected by patents?

The advantages of such arrangements can only really be judged by the
content and substance.  An agreement which benefits society by not
creating software patents would be beneficial because it would avoid
imposing industrial restrictions on those who cannot bear such
restrictions.

We feel, however, that arrangements made within the EU legislative
process are more likely to produce such results.

The EU's legislative process already has problems with lack of citizen
awareness and participation.  Allowing the circumvention of this process
for a process further removed from the people is an anti-democratic
direction which should be avoided.  Instead, democratic processes should
be followed and ways should be sought to lower the barrier of entry for
citizens and all stakeholders to participate in the legislative process.

One particular point is that any created courts must very carefully
avoid conflicts of interest.  Judges on such courts must not have prior
history within any of the various patent offices or any organisation
with a financial interest in any of the European patent systems.


3.2 Given the possible coexistence of three patent systems in Europe
    (the national, the Community and the European patent), what in your
    view would be the ideal patent litigation scheme in Europe?

FSFE would like to highlight Article 6 of the European Convention on
Human Rights, particularly with regard to the right to an independent
and impartial judiciary.

On litigation schemes, FSFE would like to make the comment that
litigation schemes focus on dispute resolution.  While this can be
beneficial by creating case law, it is more important to have clear
rules which can be interpreted clearly by citizens and lawyers without
unnecessarily leaving open the need for court cases.  Reliance on court
cases favours a small section of society who can comfortably carry the
legal and financial burden of carrying such a court case to it's
conclusion.

Thus, FSFE would prefer that such bureaucratic barriers be avoided by
the incorporating of the wording such as that from the 21 amendments
proposed for the second reading of the patents directive in July 2005.


Section 4

4.1 What aspects of patent law do you feel give rise to barriers to free
    movement or distortion of competition because of differences in law
    or its application in practice between Member States?

The greatest barrier to free movement is the fear that can exist, among
bodies who do not have the spare resources for defending -- possibly
spurious -- patent litigation threats, of appearing on the radar of a
patent holder.

The greatest distortion of competition is the use of industrial law
against individual citizens and businesses who are not in the same
industry as the patent holder.

Harmonisation could be beneficial if it included clarifications which
could prevent the mis-reading of the EPC.  To do this, the 21 amendments
proposed by many MEPs before the July 2005 vote, should be incorporated.


4.2 To what extent is your business affected by such differences?

We are a user of software, and although FSFE is not in the business of
developing software for profit, we nonetheless develop a lot of software
because that is the normal way to use computers.

We have developed a website with a system for automatically updating new
sections, we have developed infrastructure for sending and archiving
email, and we have developed software for secure communication via
encryption and signing.

Software patents could have the general effect of preventing us from
creating such IT infrastructures or from distributing the software we
develop, and uncertainty in the law confounds this.


4.3 What are your views on the value-added and feasibility of the
    different options (1) - (3) outlined above?

Suggestion #1: subject matter is the core issue and must be more clearly
addressed.

Suggestion #2: lacks definition and cannot be commented on.

Suggestion #3: is the most problematic of all.  The conflict of
interests inherent in patent offices which are funded by accepting
patents would be greatly amplified as offices could compete.

Adding a validation step involving the European Patent Office would be a
sham.  It would have no appreciable effect on the inherent problem as
the European Patent Office has the worst history of all European patent
offices for expansionism/inflationism of patent law with regard to
subject matter and of lowering the standard for other criteria.
European Patent Office practice is the exact problem which must be
addressed before there can be the possibility to create added value.


4.4 Are there any alternative proposals that the Commission might
  consider?

Alternatives should begin with the 21 amendments which were proposed by
members of all the EP parties for the July 2005 vote.  From there, a
system being developed must contain separation of power, transparency,
and must be accountable when it strays from it's mandate.

Also, the current financial incentive for patent offices to accept
applications must be addressed.  One option is to have the same fee
charged for patent application reviews, whether they are accepted or
rejected.  The system whereby patent offices receive greater income for
accepting more patents creates a system which is very close to making
the patent offices "sellers" of patents.  To prevent patent offices from
aiming to maximise sales, checks and balances could be introduced; but
there is no evidence that these could be relied on, so it seems also
necessary to fix the financial incentive.



5.1 How important is the patent system in Europe compared to other areas
    of legislation affecting your business?

The patent system, if stretched to cover software, would pose great
danger to all European software developers (businesses and individuals),
harm to Europe's software infrastructure, and distortion of competition
law.  Saving Europe from this harm is a high importance to FSFE.

Using the patent system is a non-priority for us, and would get an
importance of 1.  Participating in the administration and monitoring of
the patent system is of vital importance to us because changes in patent
law propose a real and serious threat, and would get an importance of
10.


5.2 Compared to the other areas of intellectual property such as trade
    marks, designs, plant variety rights, copyright and related rights,
    how important is the patent system in Europe?

On this, we would draw attention to the fact that the US Federal Trade
Commission, having reviewed the overall patent system in the USA,
commented that the patent system would be better if it was more
selective about what subject matter is covered, and it gave a wholly
negative report on the outcome of the patenting of software and Internet
ideas.

As mentioned in answer to question 5.1, using the patent system is of no
importance to us (0), but preventing patent legislation from becoming
harmful is a very high importance (10).


5.3 How important to you is the patent system in Europe compared to the
    patent system worldwide?

Patent legislation in Europe is of great importance.  Europe has the
opportunity, starting with the 21 amendments, to introduce highly
beneficial patent legislation and to become a leader of sensible patent
policy.  On this, the USA missed the boat.


5.4 If you are responding as an SME, how do you make use of patents now
    and how do you expect to use them in future? What problems have you
    encountered using the existing patent system?

We are not responding as an SME, and as a software developer and user we
do not have a need for using the patent system, but we would like to
comment that the barriers to entry to participate are too great for to
be economically viable for us and most European software developers.

Instead, FSFE are used by the patent system.  Because FSFE develops much
of its own software infrastructure, the patent system could make FSFE a
target for patent litigation and a potential market tool and even a
potential revenue source for others.


5.5 Are there other issues than those in this paper you feel the
    Commission should address in relation to the patent system?

As mentioned in the preceding answers, other issues to be addressed are
the sensible exclusion of software ideas from patentable subject matter,
the separation of powers which prevents distortion of law in
democracies, the abandoning of the European Patent Organisation's case
law and the implementation of an accountable system with proper checks
and balances.

The costs, restrictions, and burdens of the patent system do not seem to
be fully considered.  Bureaucracy is sometimes needed, but it slows
society and must be minimised.  It must be kept in mind that every
patent is a regulation.  Every patent is bureaucracy.


Closing comments

In closing, we would also note that we are concerned about comments in
the questionnaire which refer to "the field of intellectual property".
The comments made here by FSFE are on patent law.  The various laws
encompassed by the term "intellectual property" are so diverse and often
unrelated that comments on that field as a whole must contain great
misunderstandings or over-generalisations.



Supplemental responses from IFSO
--------------------------------

*** Section [1]: Basic principles and features of the patent system ***

[1.2] Are there other features that you consider important?

An additional feature of a worthwhile patent system (where by "patent
system" we include the regulations as to what is and what is not
patentable) is that it distinguishes different fields of endeavour.
Software is an industry where patents would do more harm than good, and
so should be stringently excluded from patentability.


[1.3] How can the Community better take into account the broader public
interest in developing its policy on patents?

It is our belief that established industry has a disproportionate say in
the development of EU legislation.  It is not in the interests of
established companies to make the market more accessible to new
competitors.  We encourage the Council/Commission to take more account
of expertise from outside established industry.


*** Section [5]: General ***

[5.1] How important is the patent system in Europe compared to other
areas of legislation affecting your business?

10: The possibility of software idea patents is the single biggest
threat to Free Software developers and users.


[5.2] Compared to other areas of intellectual property such as trade
marks, designs, plant variety rights, copyright and related rights, how
important is the patent system in Europe?

10: For the most part, Free Software can flourish under a legislative
regime including the other branches of law listed.  Indeed, it relies on
the copyright system to ensure that the freedoms it values are
protected.  The patent system, on the other hand, would be a severe
obstacle, were it to be extended to cover software ideas.


[5.3] How important to you is the patent system in Europe compared to
the patent system worldwide?

8: The plight of Free Software developers and users in Ireland would be
primarily affected by the European patent system were software patents
ever adopted in Europe.  As it stands, the absence of software patents
in Europe means that Free Software authors can innovate more freely then
they can elsewhere.


[5.5] Are there other issues other than those in this paper you feel the
Commission should address in relation to the patent system?

The topic of software patents is not explicitly mentioned in the
questionnaire text, but as we have described above, it is the single
aspect of Europe's patent system most important to the Free Software
authors and users which IFSO represents.


*** Contact information ***

(1) If you would like the Commission to be able to contact you to
    clarify your comments, please enter you contact details.

(a) Are you replying as a citizen / individual or on behalf of an
    organisation?

On behalf of an organisation.

(b) The name of your organisation/contact person:

The Irish Free Software Organisation (IFSO).
Contact person: Glenn Strong, chairman.

(c) Your e-mail address

contact at ifso.ie

(d) Your postal address

IFSO
PO Box 10105
Dublin 2
Ireland

(e) Your organisation's website:

http://www.ifso.ie/

(2) Please help us understand the range of stakeholders by providing the
    following information:

(a) In which Member State do you reside / are your activities
    principally located?

Ireland

(b) Are you involved in cross-border activity?

IFSO, by its constitution, addresses matters of relevance to Free
Software authors and users in Ireland.  The issue of software
patents, however, is a Europe-wide one, so in that sense our
activities in this area are pan-European.

(d) What is your area of activity?

Promoting the use and adoption of Free Software, and defending it when
necessary.

(i) Do you have any other experience with the patent system in Europe?

IFSO was active in the recent debate on the "Computer Implemented
Inventions" directive, where we argued for a directive to compel
adherence to Article 52 of the EPC.


-- 
Glenn Strong