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 direction.

---8<-------------------------------------------------- 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 others (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 feudalism.

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 others.

== 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.

---8<--------------------------------------------------