[Fsfe-ie] Patents letter, V4

Glenn Strong Glenn.Strong at cs.tcd.ie
Tue Jan 25 21:08:30 CET 2005

On , January 25, 2005 at 15:34 +0000, Ciaran O'Riordan wrote:
> > persuade our MEP in JURI (Brian Crowley) to ask parliament to restart the
> > directive.
> The current letter wouldn't be good for this purpose.  Crowley is well aware
> of the problems and harms of software idea patents.  When we write to him,
> we have to give legislative grounds for a restart, and show that this tough
> measure is justified.

I agree. I'm working up something based on our earlier letter. I'll
pop it on the wiki later this evening and mail the list.

I have a few suggestions & comments for the next version of this
letter.  I skipped a couple of sections due to time pressure. I'll try
to come back and give more comments. (I think the letter is shaping up
nicely, BTW).
> ---8<--------------------------------------------------
Just want to say I think the opening is much stronger now. Ian pointed
out it should be "the Irish Free..."
> First I would like to summarise the two problems caused by software idea
> patents, and some of the follow on harm.  I'll be brief as you may already
> be familiar with this issue.  If you'd like us to expand or back up any of
> these, our contact details are at the end of this letter.

Idea: include at the end some of the more important arguments - sort
of an appendix?
> The current cost of writing software is zero.  

This will sound weird to them. It sounds weird to me. I think they
will immediately say "of course it does, programmers need to be paid",
etc. and will be distracted from the point.
  "Unlike industrial processes there is no inherent cost to software
development. A programmer does not need to supply raw materials in
order to build a program since a program is an expression of an
idea. ** In this sense, at least, programming is more like mathematics
than industrial processes since the value in the program is only in
the way it expresses the ideas of the programmer **

(I'm not too thrilled with the text between the "**" markers)

>                                          If this directive legalises
> the patenting of software, then writing software would carry the risk of
> patent infringement litigation.  This cost is far too high for most
> individuals and businesses.  The avoid litigation, a software writer could

Ian got this too, but s/could/must/

> perform a patent search to confirm that none of the ideas they implement
> have been patented.  The lawyer's fees for such searches are high, and the
> software writer would still not be certain that the lawyer missed something,
"did not miss"? "has not missed"?

Since software patents are typically written in such a way that
programmers cannot even recognise their own ideas it will be
effectively impossible for developers to ensure they avoid infringing
on patents that appear unrelated to the work they are doing. 

> or that a judge would interpret a patent the same way the patent searcher
> did.  Even the cost of challenging a claim of patent infringement is too
> high for most individuals and businesses.  Thus, most people would lose the
> ability to write software.

> Problem 2: Software patents specifically prohibit writing useful software
> For a word processor to be useful, it must be capable of reading and writing
> the Microsoft's Word document format.  That format is a defacto standard
> that contains many ideas.  Obeying that standard is difficult for the world
> outside of Microsoft because that standard is complex, ever-changing, and
> always secret.  If patents were granted on ideas required to read or write
> that standard, people would be prohibited from writing useful software.

"complex, ever-changing, and always secret". True, but not
relevant. The crux of the point is that standards, open or closed, can
be controlled via software patents. reference the MPEG woes here?
> In summary, this directive must not:
> (A) Take away the current ability for all individuals and businesses to
>     write software, commercially or non-commercially, for themselves or for
>     others
> (B) Prohibit software writers from obeying standards, both public standards
>     and defacto standards

"the current directive does both these things".
>                            == Closing requests ==
> 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.

Maybe it's right but "hindsight" looks odd to me here. "discard this
hard-won knowledge"? Just a thought.
> Also, I would like to clear up a misunderstanding that still resurfaces,
> and that is the line: "TRIPS requires software patents".  This statement can
> end discussions prematurely but it is only one interpretation of TRIPS.
> 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 this does not
> cover software ideas.  I suggest the EU joins them.
> 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.

contact ifso.ie would be better (goes to the same people right now,
but gives us the freedom to include people other than the committee,
should we need to).

> We also have a correspondent in Brussels who would be interested in taking

"would be interested" - better as "is available for"?

> part in any in-person meetings.
> ---8<--------------------------------------------------
> -- 
> Ciarán O'Riordan
> http://www.compsoc.com/~coriordan/
> Free Software in Ireland: http://ifso.ie
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Glenn Strong

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