[Fsfe-ie] Patent letter, new, long

Ian Clarke ian at locut.us
Sun Jan 23 19:20:50 CET 2005

I know this is very late in the day for this letter, but I am a bit  
concerned that the explanation of the problems with software patents  
misses the wood for the trees somewhat, focusing on specific examples  
of harm, but without explaining the underlying reason for the harm.

I recently tried to address this in an article focusing on the "big  
picture" issue with software patents, and if it isn't too late, perhaps  
there are some useful ideas in it that could be incorporated into the  

Please find the article here:


Again, apologies for sending this at the 11th hour.


On 23 Jan 2005, at 17:32, Ciaran O'Riordan wrote:

> Here's an updated version.  The intro and section 1 A&B are mostly
> unchanged, although reworded.  Section 2 is the most changed but still  
> needs
> the most reviewing.  This letter should be sent Tuesday-ish so that
> recipients have time to digest it and/or get in touch with us before  
> Jan
> 31st.
> Did someone (Malcolm?) say we have a list somewhere of who this should  
> be
> sent to?
> If not, how about:
> Micheal Martin, Minister for Enterprise, Trade and Employment
> Charlie McCreevy, European Commissioner for Internal Market and  
> Services
> The department of Enterprise Trade and Employment
> Our MEPs[2], they're not directly involved right now, but it wouldn't  
> hurt
>   to keep the issue in their mind, and some of the new (most of them)  
> MEPs
>   might not have heard this side of the issue before.
> ...and who's are rep in these fishery meetings?
> Here's the letter, comments sought:
> --------------8<-------------------------------
> Dear Representative,
> On behalf of Irish Free Software Organisation (IFSO), I am writing to  
> you
> regarding Directive 2002/0047 COD.  At issue is that this directive, as
> written by the European Commission, would make software ideas  
> patentable.
> This was fixed by the European Parliament, but the EP's work  
> subsequently
> undone by the European Council.
> IFSO believes that the European Council was deceived by the wording of  
> the
> replacement amendments they adopted, and IFSO would like this break  
> down in
> democracy to be fixed.  This directive needs further work, and it  
> certainly
> should not be an A-list item.  The legislative process may even have  
> to be
> restarted, IFSO understands the gravity of this, but guaranteeing the
> non-patentability of software ideas would warrant such a move.
> The content of this letter is as follows:
> 1. Fundamental reasons for excluding software ideas from the patent  
> system
>  A. Willful use of old ideas
>  B. Unknown use of old ideas
> 2. Important secondary reasons
> 3. Misconceptions
> 4. Closing request
> 1.A. Willful use of old ideas
> Standards are to software what languages are to humans.  Using my own  
> new
> innovative language, or Esperanto, will not allow me to communicate  
> with my
> european representatives.  In a software equivalent, I've found that  
> to take
> part in the democratic process I must have software that can view the
> Microsoft Word formatted documents that my representatives attach to  
> their
> emails.
> The Microsoft Word format is a defacto standard.  The most  
> comprehensive
> alternative is the free software OpenOffice.org suite.  Most people  
> have
> never heard of it.  Providing an alternative to Microsoft Office is  
> very
> difficult because their document format standards are complex,
> ever-changing, and always secret.  If Microsoft is allowed to patent  
> one or
> more of the ideas required to read or write their defacto standards,  
> the
> task of providing a compatible alternative would change from difficult  
> to
> illegal.  Incompatible alternatives are as useless as Esperanto.
> IFSO's first reason for maintaining the exclusion of software ideas  
> from the
> patent system is that patent legislation must not prohibit people from
> writing software to use standards, both public standards and defacto
> standards.
> 1.B. Unknown use of old ideas
> The second issue is that making the patent system a part of the  
> software
> writing process would be prohibitive to most individuals and  
> businesses.
> Patent searches, litigation insurance, license negotiation, and  
> infringement
> litigation are just a few of the costs in the design and manufacture of
> products such as washing machines or pharmaceuticals.  The patent  
> costs are
> enough to prevent the general public from manufacturing their own  
> washing
> machines and pharmaceuticals, but this is not a problem since the lack  
> of raw
> materials and a factory would prevent the general public from  
> manufacturing
> these items anyway, even if there were no patent costs.
> The same is not true for software.  The ability to write software,  
> like the
> ability to write a book or a letter, is democratised, it's within the
> ability of any individual or business.
> So IFSO's second reason for maintaining the exclusion of software  
> ideas from
> the patent system is that the current ability of all individuals and
> businesses to write software and make it available to others, both
> commercially and non-commercially, must not be taken away by patent
> legislation.
> 2. Important secondary reasons
> The following reasons have been labelled as secondary because the
> fundamental reasons would stand even if all the following were fixed or
> judged to be insignificant.  They are important still.
> A. Software idea patents would be particularly prohibitive to free  
> software.
> Also called "libre software" or "open source software", free software  
> is
> software that comes with permission for all to modify and redistribute.
> Because redistribution is not restricted, counting the number of  
> circulating
> copies is impossible.  This would make it particularly to obtain a  
> patent
> license since most licenses include per-copy fees.  The second problem  
> is
> the free software is usually distributed non-commercially, and always  
> comes
> with permission for others to distribute [I can't finish this  
> sentence, will
> come back to it]
> In 2003, the European Commission's Information Society Initiative  
> reported
> that free software "for the European software industry - somehow [free
> software] may be a proverbial 'second and last chance'".
> B. The costs of the patent system would prevent Small and Medium-sized
> Enterprises (SMEs) from independently entering the market.  Their  
> remaining
> option would be to seek to be bought out by a cash-rich or patent-rich
> company.  One of the few interventionist duties of a free market  
> government
> to prevent such feudalism.
> C. Expanding on the above situation (1.A) of how patent could require  
> people
> to use Microsoft software in order to view Microsoft Word formatted
> documents: If I must use Microsoft Office, then I also must use the
> Microsoft Windows or Apple Macintosh operating system.  No other  
> operating
> systems are supported.  Thus, Microsoft's defacto standard document  
> formats
> would maintain their operating system market dominance and exclude new
> alternatives as well as existing alternatives such as GNU/Linux.  This
> monopoly situation would be legal too, so it would be difficult for
> governments to step in to resolve it.
> D. Again using Microsoft as an example, if expanded patentability  
> creates a
> situation where the only useful office suite is the one owned by  
> Microsoft,
> then it follows that the only innovations that could usefully reach the
> public are the innovations of that one company.
> E. The patent costs mentioned above would increase software production
> costs, which would naturally end up at the purchaser.  Since Ireland,  
> and
> indeed the EU as a whole, is a net importer of software, it makes  
> negative
> sense to increase the cost of software to users.
> F. Software already has legal restrictions in the form of copyright.   
> Many,
> including IFSO, feel that the restrictions of copyright are too great,
> particularly in the aftermath of the European Copyright Directive (aka  
> the
> "InfoSoc" directive).  No activity is currently restricted by both  
> copyright
> and the patent system.  Applying both restrictions to software writing  
> would
> create a very hostile environment for innovation.
> G. We should not repeat mistakes.  On this topic we are lucky to have  
> the
> hindsight of the USA to learn from.  The 2004 US Federal Trade  
> Commission's
> report on patents said this about 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.)
> H. Less than 30% of the software idea patents received applied for in  
> the EU
> are from european individuals or businesses.  It's the USA, and to a  
> lesser
> extent Japan, that wants to patents for software ideas from the EU.  
> [must
> find actual number, on ffii.org.uk IIRC] Patents are wanted by big
> businesses, and those under the pressure of big businesses (such as  
> start
> ups hoping to get bought).  The EU doesn't have any of the worlds big
> software businesses.
> I. Patents are currently awarded for trivial ideas.  This is a core  
> problem.
> If even one software idea patent is granted, the owner or licensee can  
> make
> their defacto standard rely on it and there for exclude all others from
> writing useful alternatives.  The ease at which patents are granted  
> only
> aggravates the problem.
> 3. Misconceptions to be cleared up
> #1: "TRIPS requires software ideas be patentable"
> This bluff assumes the listener won't check TRIPS.  In fact, article  
> 33 of
> TRIPS requires that (get actual quote)"patents be granted for all  
> fields of
> technology".  Many TRIPS signatories have legislated that software  
> ideas are
> not patentable.  I suggest the EU joins them.
> #2: "If software ideas are unpatentable, every innovation in any  
> device that
>  uses software will be unpatentable"
> IFSO's request is that software writers and users should not be at  
> risk of
> patent infringement.  This will not interfere with whether washing  
> machine
> designers or manufacturers would be at risk of patent litigation.
> 4. Closing requests
> Law is best when it is clear.  There are few opportunities to write
> legislation that has a sharp line between regulated and unregulated.   
> Here
> is such an opportunity: I cannot write hardware, and computers cannot
> read/run hardware.  IFSO requests that writing and running software,  
> should
> not open anyone to patent litigation.  Patent inflationists would like  
> fuzzy
> law which can be reinterpreted, or which can enforce an interpretation  
> by
> the cost of contesting a bad patent in court, or the threat of  
> litigation,
> the cost of which is too high for individuals and for most businesses.
> IFSO was pleased in October 2003 when the European Parliament adopted a
> series of amendments which clarified the non-patentability of software
> ideas.
> Contact us a committee[at]ifso.ie, meet our folk in IRL or BXL, etc.
> --------------8<-------------------------------
> -- 
> Ciarán O'Riordan
> http://www.compsoc.com/~coriordan/
> Free Software in Ireland: http://ifso.ie
> _______________________________________________
> fsfe-ie at fsfeurope.org mailing list
> List information: http://mail.fsfeurope.org/pipermail/fsfe-ie
> Public archive: https://mail.fsfeurope.org/mailman/listinfo/fsfe-ie
Founder, The Freenet Project	http://freenetproject.org/
CEO, Cematics Ltd				http://cematics.com/
Personal Blog					http://locut.us/~ian/blog/

More information about the FSFE-IE mailing list