[Fsfe-ie] Patent letter, new, shorter, V3
Ian Clarke
ian at locut.us
Mon Jan 24 17:24:50 CET 2005
Sorry I'm not being clear. I guess I disagree with the emphasis you
are placing on the standards issue, I think it is more a symptom than a
cause. Were the standards issue to go away (if, for example, patents
were not permitted on standards), then I still think software patents
would be a big problem.
The fundamental reason software patents are bad is that the cost to
society of granting a 20 year monopoly greatly outweighs the benefits
of providing this incentive to innovators. My essay tries to elaborate
on this point which is why I mentioned it. This is essentially the
point you are making in "Reason 2".
So, my suggestion, and sorry once again for making it in such a
confusing way (I was having a bad thought day), is that Reason 2
becomes Reason 1, and Reason 1 gets moved into the "follow-on harm"
section.
Ian.
On 24 Jan 2005, at 16:01, Ciaran O'Riordan wrote:
>
> Right, version 3, condensed (~20%). I've shortened Sections 1 A&B,
> cleaned
> up Section 2, deleted Section 3, and done a bit on Section 4 (where the
> TRIPS argument now lives).
>
> I still don't understand what Ian's trying to tell me. If someone else
> does, please beat me over the head with his point.
>
> I just noticed FFII have a good short intro to the whole software idea
> patent problem.
> http://swpat.ffii.org/log/intro/index.en.html
>
> Let me know if it's ready or nearly ready to send, or give
> corrections/complaints/etc.
>
> ----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 extend the patent system to
> include software ideas. In September 2003, amendments fixing this
> issue
> were adopted by the European Parliament by an average majority of 75%,
> however, in May 2004, the EP's work was undone 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 again.
>
> First I will give the two fundamental reasons why software ideas must
> remain
> unpatentable. Then I will give some of the follow-on harms that the
> patent
> system would cause software writers and users, and I'll end with IFSO's
> requests and our contact details.
>
>
> == Reason 1: Use of old ideas to follow standards ==
>
> Writing a word processor that can read and write Microsoft Word format
> documents is very difficult because Microsoft's standard is complex,
> ever-changing, and always secret. But a word processor that can't
> read and
> write that defacto standard, is practically useless. Microsoft Word
> format
> is a defacto standard, in business and in corresponding with European
> representatives.
>
> If Microsoft is allowed to patent one of the many ideas that a piece of
> software must use in order to read or write that standard, they would
> have a
> legal barrier with which to prohibit anyone from writing a compatible
> alternative.
>
>
> == Reason 2: Unknown use of old ideas ==
>
> Writing software means putting ideas into a simple language that a
> computer
> can understand. There is no cost to writing software. The ability to
> write
> software and make it available to others, is currently within the
> ability of
> all individuals and businesses.
>
> The patent costs involved in the design and manufacture of products
> such as
> washing machines or pharmaceuticals are enough to prevent most
> individuals
> and businesses from manufacturing these products for themselves. This
> is
> not a problem since the lack of raw materials and a factory would
> prohibit
> these actions anyway, even if there were no patent costs.
>
> The same is not true for software. Introducing a need for patent
> searches,
> litigation insurance, license negotiation, and infringement litigation,
> would prohibit most individuals and businesses from writing software.
>
> In summary, patent legislation must not:
> (A) Prohibit software writers from obeying standards, both public
> standards
> and defacto standards
> (B) Take away the current ability for all individuals and businesses to
> write software, commercially or non-commercially, for themselves
> or for
> others
>
>
> == Follow-on harm ==
>
> The above reasons would stand even if all the following harms were
> viewed as
> fixable or insignificant. The following are important none the less.
>
> A. 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. 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.
>
> 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 the protection of a cash-rich or patent-rich
> company. One of the few interventionist duties of a free market
> government
> is to prevent such feudalism.
>
> C. Expanding on the word processor example (from Reason 1): If I must
> use
> Microsoft Word, then I also must use either the Microsoft Windows or
> Apple
> Macintosh operating system. No other operating systems are supported.
> This
> defacto standard document format would therefore restrict people's
> choice of
> operating system as well as their choice of word processor. Software
> has
> enough problems with monopolies, the ability to patent software ideas
> would
> worsen this situation, and the monopolists actions would be legal.
>
> D. Again using the word processor example, if the only useful word
> processor
> is the one written by Microsoft, then the public will miss out on the
> innovations of every other software writer.
>
> E. 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.
>
> 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). Adding patents to the burden on software writers
> would be a restriction too many.
>
> G. 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.
>
>
> == Closing requests ==
>
> In closing, I'd like to clear up one piece of misinformation that is
> still
> resurfacing, and that is the line: "TRIPS requires software patents".
> This
> statement can end discussions prematurely but it's a bluff that
> assumes the
> listener won't check TRIPS. In fact, 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 software ideas are not patentable. I suggest the EU
> joins
> them.
>
> Here we have an opportunity to draft clear law. Software and hardware
> are
> not the same. I cannot write hardware and computers cannot
> run/execute/read
> hardware. IFSO requests that writing and running software be excluded
> from
> the patent system.
>
> 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.
>
> Now, stick that in your pipe and smoke it.
> ----8<--------------------------------------
>
> I'm not 100% happy with that last line. It's open to removal.
>
> I should be back online again later tonight. Sending this on Tuesday
> night
> would be great, but if there isn't consensus soon it looks like a
> Wednesday
> send.
>
> --
> Ciarán O'Riordan
> http://www.compsoc.com/~coriordan/
> Free Software in Ireland: http://ifso.ie
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>
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CEO, Cematics Ltd http://cematics.com/
Personal Blog http://locut.us/~ian/blog/
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