[Fsfe-ie] Patent letter #3

Ciaran O'Riordan ciaran at member.fsf.org
Wed Jan 21 20:26:14 CET 2004

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.


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

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


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

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

Ciaran O'Riordan - http://www.compsoc.com/~coriordan/

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