Letter I have sent all Irish & British MEP's

Niall Douglas s_fsfeurope at nedprod.com
Thu Aug 7 18:59:14 UTC 2003

Fraid I just couldn't get my old subscription to this list to work, 
so I've tried resubscribing. I hope this works, but bear in mind I 
may not receive any replies unless directed straight at my address. 
Note also that I have missed all posts to this list since January 
though I've flicked through the archives.

Below is the text of a letter I have sent every Irish and English 
MEP. I would have also sent one to every MEP from a country likely to 
speak English (eg; Germany) but since I've been unemployed for 
eighteen months now and had to move back to live with my parents, the 
sixty odd euro I've already spent is as much as I can spare.

I hope the ideas contained within the letter will be useful to 
others. What is important to remember is that MEP's don't understand 
technological or ideological argument - they want to know (a) what's 
wrong with a proposed directive and (b) how to fix it. With these two 
bits they can make arguments without having to research the matter 
for themselves.

Hence in the letter I have (a) explained in simple terms what's wrong 
with US-style software patents and (b) an alternative form of patent. 
You must remember that TRIPS mandates software patents, by treaty the 
EU must adopt some form so just saying "no to patents" is no good. I 
have spent much of the last few months honing my arguments with my 
local MEP's so I am confident the letter below will resonate with all 

Lastly when sending your correspondance, remember that most MEP's are 
on holiday till late August. The plenary session is in early 
september, therefore you should probably post to the European 
Parliament directly and mark the top left corner of your envelope 
with "ATTN: For September plenary session" or something similar. This 
will ensure it is read before the plenary session and not lost in the 
backlog that builds up during the summer.

Best of luck!


--- cut ---
Dear MEP,

I am writing to you again concerning the directive on the 
patentability of computer-implemented inventions 2002/0047 COD which 
is due for plenary debate in early September. Thanks to 
correspondence with MEP Brian Crowley I now understand my original 
letter to you was unclear and overly-technical and so here I shall 
break down the issue:

1. Why patenting software in the same way as traditional patents has 
the opposite effect to patenting manufactured goods:

Since we have had patents for so long, we automatically associate 
them with generic protection of invention & fostering a good 
environment for innovation. Very rarely do people actually think how 
patents protect inventions and while I will now give a quick summary, 
you can consult Thomas Jefferson's work (yes, the same founding 
father of the US) on the 1793 Patent Act.

Patents traditionally protect the inventor, not the invention. They 
are intended to provide a temporary monopoly allowing the small 
inventor to bypass conventional economic rules so that he/she may 
become big enough to properly compete when the temporary monopoly 
expires. Conventional economic rules means that an established 
manufacturer has scale of economy for raw materials and established 
manufacturing capacity such that they could bring any new invention 
to market much quicker and cheaper than any smaller operation - this 
is what is being suspended. Because of this patent law historically 
permitted a competitor to substantially enhance a patented item and 
patent that without having to pay royalties for the parent work. 
What's most important to understand is that patents protect the 
inventor, not the invention.

Now we as a society have forgotten this especially in the last twenty 
years - I should also add that patents were controversial in their 
own day with some saying that gradual slippage into a tool of 
economic warfare would happen in the way many would argue they have. 
However back to the point - software differs from manufactured goods 
in two major ways: cost of raw materials is nil and cost of 
manufacturing is almost nil. Because of this I with a CD burner can 
manufacture Microsoft's software nearly as cheaply as they can and if 
I distribute it over the internet, then even cheaper again. We're 
talking fractions of a centimo here.

This means that computer software's cost is exclusively research and 
development costs. The very fact that patents were invented in the 
first place was because small inventors could outdo an R&D department 
of a large company spending millions i.e. R&D costs are 
extraordinarily variable - or even you could say that genius is 
incredibly expensive if you don't already have it.

Having established that software is very unlike a manufactured good, 
what are the consequences? Well effectively you are solely patenting 
the research and development process i.e. preventing other people 
performing similar research and development to the one you patented 
for fear of infringing that patent (especially as the proposed patent 
directive is not clear about how much more innovative you must be for 
a new patent i.e. it's shelved onto the judiciary, and thus the 
innovators in legal costs) plus there is a much diminished return if 
you must pay insurers more if you do innovative work (higher risk). 
Can you see clearly now why there would be a chilling effect on 
innovation? Large companies can afford to purchase many patents and 
if you look at IBM's example, it patents hundreds of promising areas 
of software development every year as a "patent land-grab" yet does 
further research into only a few of them. Nothing in Arlene 
McCarthy's recent revisions will stop that curse hitting us here.

2. Arlene McCarthy's report (C5-0082/02) is fundamentally incorrect & 
misrepresentative on many levels:

The report (a) shows a complete misunderstanding of how patents work 
in general (b) misrepresents that software patents would be good for 
SME's (Small & Medium Enterprises) and (c) incorrectly states that 
the EU needs to have US-style software patents because of TRIPS 

On point (a), I merely need to refer to how many times the report 
says things like "Patents play an important role in ensuring the 
protection of technical inventions in general". Patents are not for 
protecting inventions, they are for protecting inventors!

On point (b), I refer you to page 30 of the report: "While opposition 
to patents relating to software was expressed by a large majority of 
the individual responses to the consultation, the collective 
responses on behalf of the regional and sectoral bodies, representing 
companies of all sizes across the whole of European industry, were 
unanimous in expressing support for rapid action by the Commission 
more or less along the lines suggested in the discussion paper". 
Firstly, that misrepresents the grave misgivings expressed by 
European companies about the idea (yes it urgently needs to be 
tackled, but we don't like US-style software patents). Secondly the 
phrase "opposition to patents relating to software was expressed by a 
large majority of the individual responses to the consultation" is 
extremely important because it shows that software engineers 
themselves are overwhelmingly opposed to US-style patents. Where 
SME's and large companies were consulted, invariably support for US-
style patents was expressed by management without consulting their 
engineers - and quite frankly, the management of most software 
companies just don't understand enough to be able to say (and any 
software engineer will back me up on this).

On point (c), just because the United States of America has shoddy 
software patents doesn't mean we have to repeat their mistake. 
Instead we should look at this as an opportunity to improve the 
regulation of a sector long insufficiently supported by law for the 
benefit of the industry, consumers & society. The key to the new & 
much improved form of software patent which remains compatible with 
TRIPS mandate is to make the computer software itself the patentable 
item - not its concept. Here is how it should look:

1.	All computer software must come with sources (i.e. the files which 
create the computer program). The reason for this is fourfold:
a.	To permit study by those learning computer programming. In the 
1980's, most computer software for home computers came with source 
and it led to a generation of talented programmers who taught 
themselves in their own home (such as myself). The fact this has been 
removed has inexorably led to declines in competency and thus overall 
quality of the profession - markedly obvious in the large & 
increasing number of failed or over-budget IT projects.
b.	To permit inter-operability with other systems (especially those 
the vendor has a vested interest in not being compatible with). While 
legal rights already exist in Europe for reverse engineering in this 
regard, the process is made much more difficult and less successful 
than it would be with source.
c.	To permit users to fix bugs in third-party software. I cannot tell 
you how frustrating it is to report a bug to a vendor, to even know 
where it is and how to fix it but the vendor refuses to fix it 
(because doing so would cost profit). The result is lowered quality 
of engineering and much waste of time for hundreds of millions of 
people globally (think of every time your software has gone wrong and 
the work lost).
d.	After seven years from the date of release, all source must become 
available for unrestricted public use for any reason at all. This is 
probably the most contentious part of my idea - computer software 
operates on a three to four year cycle so seven years is 
approximately two evolutionary cycles of software - thus only a 
minute amount computer software is still being sold in its original 
form after seven years. Making all code freely available after seven 
years means that the very best code gets amalgamated into a common 
pool available for the benefit of all software programming everywhere 
- thus preventing to some extent the massive industry-wide 
duplication of identical functionality which currently happens - but 
still allowing for plenty of potential profit. Might I add that 
already some industry leaders release the sources for products after 
seven years (e.g. id Software).
2.	An implementation of an algorithm (hereon in called a "library") 
should have strong Intellectual Property protection. The owner of 
such a library can licence its use to others for a royalty. 
Competitors can also develop competing implementations of the same 
algorithm(s) and thus a state of competition is created, where 
implementers compete with each other for customers - thus driving up 
quality, lowering price and preventing the current massive waste of 
production. The existing system (which would get worse with software 
patents) has so many companies duplicating the same functionality - 
under this new system, they'd be strongly encouraged to sell off 
reusable functionality as libraries to supplant development costs. 
The industry would benefit as a whole.
3.	Computer software should be sold, not licensed. The purchaser 
should get the same rights as when buying anything else, including 
the right to a free replacement of a defective product or their money 
back and the right to modify their purchase as they see fit. This 
includes customisation, fixing bugs and indeed applying other 
people's bug fixes. Naturally though, they must not redistribute or 
sell a modified product without previously agreeing a royalty payment 
- after all, they are reusing the work of someone else - however, 
they can freely distribute the information to others on how to 
similarly modify their purchase.
4.	Computer software should not be sold as separate versions for each 
computer e.g. one for Apple's, one for Windows etc. nor as one per 
computer. If you buy a program, you buy the right to use it on all 
computers you personally use (within reasonable limits). Companies 
will complain that each "port" to a new platform is expensive - 
actually, technologically this has become much cheaper in recent 
years and will soon sink to zero overhead cost so in fact vendors are 
making unfair profits from users using (a) more than one machine and 
(b) using more than one type of machine (however I would permit a one-
off separate charge for a brand new port). If you think that this 
might reduce the incentive for vendors to produce versions for 
alternative systems, point 3 above will ensure that if enough users 
want it, they'll make it happen on their own - and thus the vendor 
loses out on profits. Plus, most computer software license breaches 
are currently made by private individuals installing multiple copies 
of the software - and I can see no point in criminalising vast 
segments of the computer using population when nothing can be done to 
prevent it anyway.
5.	Following on from the last point, not-for-profit distribution of 
computer software among private individuals who personally know each 
other should no longer be criminally sanctioned. The near-zero 
duplication cost of computer software makes any less tolerant law 
unenforceable and again, one is criminalising large proportions of 
users for no gain and much loss. Furthermore, distribution among 
friends is invariably done because of 
recommendation so in fact this process helps vendors sell more 
software. Of 
course, support and upgrades and other legal rights listed above can 
not be 
granted on anyone who does not own a copy - this provides an 
incentive in 
addition to the moral one to pay those who work to make your life 

Hence I urge you next September to reject any and all forms of US-
computer software patents as currently proposed by the directive on 
patentability of computer-implemented inventions 2002/0047 COD. It 
substantially chill technology venture start-ups across Europe (as it 
has done 
in the US) and leave them open to technology "bear raids" by US 
multinationals - to the detriment of software quality, innovation, IT 
employment & Europe's ability to set the technology pace in today's 
global environment.

Yours sincerely,

Niall Douglas

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