I'm still up to my eyes in other projects, but here's a first draft of a patent letter:
Comments welcome, nitpicking not necessary, full rewrite possible.
Dear you,
I am writing to you on behalf of Irish Free Software Organisation (IFSO) regarding EU Directive COD/2002/0047 "on the patentability of computer implemented innovations".
On September 24th 2003, we were pleased that the plenary voted for a set of amendments which clearly exclude software innovations from the patent system. We were particularly glad that this majority included all of the 11 Irish MEPs that voted. I ask that Irelands representation on the Commission uphold the decision of the Irish MEPs and the plenary. Below, I will outline why this position is imperative to protect competition and innovation in software and for the economy of Ireland.
competition ===========
For new software to compete with the market leader, it must be compatible. That is, it must be able to read and write data in the same format as the market leader, and it must present a recognisable interface. When software packages are not compatible, users of one software package become locked-in as the hassle of migration increases.
The need for compatibility is currently a major problem in the software industry as market leaders change data formats regularly, thus making it hard for the competition to maintain compatibility. If the market leader could patent a technique required to read or write it's data, competition could become all but impractical. At present, anti-competitive practices can sometimes by tacked by the EU or by national governments, but software patents would introduce a legal tool for holding back competition, free from government regulation.
Software already has legal protection in the form of copyright. Copyright law is a good fit because it costs nothing to use, requires no processing time, and it doesn't restrict others from independent development.
Innovation ==========
Software is very easy to develop because there are no material or legal restrictions on it's development at the moment. This ease of development has made it possible for new businesses and even individuals to write highly complex software packages incorporating thousands of ideas. Some will be new innovative ideas, but most will be known ideas, or ideas required for compatibility.
If known ideas were to become ownable, individuals and new business would find it hard to write new software without infringing patents. The traditional incremental development of software would become a legal minefield, and many software innovations would never reach the market.
Large businesses could also face endless law suits due to the massive number of ideas incorporated in their packages, and development would be slowed down as the software developers of these companies would have to split their time between development and researching patents so as not to leave the company open to such law suits.
In some fields of development, it is hoped that the barriers created by patents will lead to new innovative solutions to problems (lateral innovation), but when trying to read or write data in an arbitrary format, there are many situations where only one technique can be used. Thus, lateral innovation will not be encouraged, because it would be of no use.
The Irish economy =================
The revenue generated from patents will be distributed roughly according to how many patents each country owns. Ireland is unlikely to own more than 1% of software patents, so 99% of patent royalties from Irish companies will be leaving Ireland, mostly going to the US. This "patent tax" may prove too high for many small, medium, or new businesses, and would certainly be too high for individuals.
Irish software developers will have to either license the patents or avoid them. If they license, they will be maintaining a stream of royalties leaving the country. If they avoid the patents, (something that is very difficult, or sometimes impossible) we will not be producing competitive software.
The security of our government, industry, and citizens is increasingly dependent on software. For this reason, Ireland must retain control of it's software systems, and it must be permitted to develop it's own.
Learning from others ====================
When the US ruled that software patents would be legal, they didn't have the benefit of being able to study how other economies handled software patents. Recently, more than a decade after software became patentable, the US Federal Trade Commission have released a damning report on what effect they have seen with software patentability.
[insert comment about FTC report]
The US is seeing a new problem in the last three years in the form of IP Law firms, specialising in "monetising software patent assets". The firms buy unused software patents, and monetise their asset by sueing whoever they can. The typical targets small businesses, ones that can't afford to defend themselves in court. They can make a lot of money from sueing software development companies, and they face no risk because they don't development any software of their own. Their business is legal in the US, but it is having terrible effects on software development.
In contrast, the one software innovation that has produced the greatest social benefit in the last decade, is the World Wide Web. This is an unpatented innovation, which has fostered the highest levels of competition and innovation in the history of computing.
Free Software, also known as "Libre Software", or "Open Source" ===============================================================
Free Software refers to software that comes with the freedom to run, copy, study, modify, and redistribute. Free Software cannot require that royalties are paid to a developer, but anyone can charge for services such as customisation, distribution, setup, and support. The European Commissions' Information Society Initiative recently released a report on "Free / Open Source Software F/OSS", which says:
``On the provider side, F/OSS creates new opportunities for software and service providers, which may be a unique opportunity for the European software industry - somehow this may be a proverbial "second and last chance".''
Because royalties cannot be required, Free Software developers would find it nearly impossible to get a license to use a patent. Software patents could kill this new European software industry before it has a chance.