[Fsfe-ie] Re: Patent letter #3

Ben North ben at redfrontdoor.org
Thu Jan 22 15:07:10 CET 2004

Hi Ciaran and list,

(Sorry I haven't been able to make recent Benshaws meetings.  I hope to
come to the next one.)

I'd like to put out for discussion a couple of broad points about the
draft letter proposed by Ciaran.

* I think the overall format is good --- brief introduction and main
  point ("please uphold the plenary's amendments") and then more
  detailed arguments.

* I would guess it's possible that the recipient might have heard the
  competition, innovation, economic, free software arguments before, so
  might it be a good idea to start off with the FTC report?  I think
  that this is a very powerful point --- "Never mind all the speculation
  (from both sides) about what software patents might do, this is what
  *actually happened* in the US:  Software patents hamper innovation,
  divert resources from R&D, etc.".  It might even be worth including
  their conclusions in full:  (I've cut'n'paste this from
  http://www.ffii.org.uk/ftc/ftc.html but we should check it's
  word-for-word correct against the original report (at
  http://www.ftc.gov/os/2003/10/innovationrpt.pdf).  I'm happy to do
  this if the quote is included in IFSO's letter.)

      The software and Internet industries generally are characterized
      by five factors: (1) innovation occurs on a cumulative basis; (2)
      capital costs are low, particularly relative to the
      pharmaceutical, biotechnology and hardware industries; (3) the
      rate of technological change is rapid, and product life cycles are
      short; (4) alternative means of fostering innovation exist,
      including copyright protection and open source software; and (5)
      the industries have experienced a regime change in terms of the
      availability of patent protection.

      Panelists consistently stated that competition drives innovation
      in these industries. Innovation is also fostered by some industry
      participants' use of copyright protection or open source
      software. Several panelists discounted the value of patent
      disclosures, because the disclosure of a software product's
      underlying source code is not required.

      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. Panelists discussed how
      defensive patenting increases the complexity of patent thickets
      and forces companies to divert resources from R&D into obtaining
      patents. Commentators noted that patent thickets make it more
      difficult to commercialize new products and raise uncertainty and
      investment risks. Some panelists also noted that hold-up has
      become a problem that can result in higher prices being passed
      along to consumers.

  It strongly supports the view that the patent system does not do what
  it's supposed to do when applied to software.  Not "probably wouldn't
  do what it's supposed to do", but "DOES NOT...", in the experience of
  the US panel.  The point "this is what happens, don't let Europe
  repeat the US' mistakes" is a powerful one.

  Ciaran's letter does pretty much say all this, but I think it could
  be emphasised more, and placed more prominently in the ordering.

* Maybe move the paragraph

      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.

  to before the detailed points?  Work it into the introductory
  paragraphs somehow?

* I've seen it pointed out by many pro-patent groups that there's a
  correlation between R&D spending and patent portfolio size, with their
  conclusion being that patents help R&D.  I'm not the first to point
  this out, but: this is just as well explained by interpreting patent
  spending as a necessary evil with things the way they are, a cost of
  doing R&D.  Not sure that this point should be included, because we're
  trying to make our own points rather than rebut pro-patent points.

I had a couple of comments about wording here and there, but I'll pay
attention to the "no nitpicking" request :-)

Hope this might be useful,


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