[SLUG] Software patents proposal .. 24 hours to reply

[john at johnallsopp.co.uk]

Hi ppl

Having watched the software patents issue for a while
<http://www.johnallsopp.co.uk/softwarePatents.php4> and with votes
coming up in the EC, I thought it time for another letter.

This one is more considered and hopefully better substantiated than
the one before. I wondered, though, whether anyone else in the group
would like to add their name to it. It seems better to write on behalf
of two, three, or ten people rather than just myself.

If you agree with what I'm saying (see text below) and would like your
name added, please reply in 24 hours, and tomorrow morning I'll send
it off to all our Euro MPs.

Cheers
J

Dear

I am writing to ask you to use your influence to ensure that software
remains unpatentable when the Computer Implemented Inventions (CII)
Directive (Software Patents) is considered on the 21 June and 5 July.

Software should not be patentable
---------------------------------

The European Patent convention of 1972 and the World Trade
Organisation’s TRIPs agreement state that pure software should not be
patentable.

We find it a point of principle that ideas must not be patentable, and
that ordinary people will not accept a system that allows businesses
to own common processes. The effect will be to criminalise the
majority.

In America, where software patents were recently made legal, software
patent applications are often frivolous, yet are granted. Perhaps 60%
of US software patents would fail a rigorous prior art searche and up
to 95% would fail the other two tests"
<http://www.digital-copyright.ca/node/view/862>. In other words, even
with America's resources, software patents are proving unworkable
because they are so difficult to check.

If software had been patentable fifteen or twenty years ago, we would
not have a free-to-access  Internet now. It would be available only
for those able to pay for it, with the effect of preventing access to
human knowledge for the poor and widening the digital divide.

The open source movement is uniquely vulnerable
-----------------------------------------------

Since the Internet enabled free communication between people
regardless of distance, software developers have co-operated to create
open source software applications such as Linux, the word processor
I'm using to create this email, and the software that delivered it
across the Internet to you. Now open source software offers a real
alternative to commercial software. We believe this people-led,
philanthropic movement to share knowledge and capability is perceived
as a threat to the interests of established software companies and
they are applying strong lobbying pressure to bring about software
patents to protect their own interests. Most of those companies are
American, so to accede would be to allow a net outflow of money from
European citizens to American corporations.

Furthermore, open source software is by definition more vulnerable to
software patent lawsuits because the software is open to inspection by
anyone. Normal commercial software is not visible. A software patent
law is probably capable of making the free software movement
unsustainable, leaving us all, consumers, business customers, and the
public sector,  at the mercy of commercial interests.

Small software companies are vulnerable
---------------------------------------

The Professional Contractors Group says that software patents would be
'enormously harmful' to tens of thousands of freelance developers and
small or independent software developers
<http://www.shout99.com/contractors/showarticle.pl?id=32873>.

The effect would be to remove the option for people and businesses to
employ a small software company to develop their software and, by
removing competition, to raise the cost of software development
overall, affecting inflation and the pace of innovation. The legal,
technical and economic effects of software patents is the subject of
an EC funded study due to report in 2007. Legislation passed now will
not benefit from the knowledge that study will bring
<http://www.macworld.co.uk/news/index.cfm?NewsID=11702&Page=1&pagePos=12>.

If software patents were allowed, software developers would be in
danger of infringing a patent with every line of code they write. They
have no easy way of checking against the thousands of patents that
would exist. When an infringement occurs, the developer must attempt
to avoid the idea, attempt to overturn the patent (expensive), or buy
a licence from the patent owner. The owner is not obliged to grant
licences and may name their terms.

In replies to my previous letter politicians claimed that big
companies play legal games with each other over software patents and
there is no danger to small companies. On the contrary, big companies
can defend themselves with their own patent portfolio. It is the small
companies who are defenceless and yet pose the greatest threat to
commercial interests through open source software development. Given
the legal framework, big software companies will make small-scale
software development extinct.

The law must be clear
---------------------

The issue rests partly on the meaning of terminology. Software that
controls a physical system (eg. a computer controlled lathe) is
currently patentable and that is accepted. Pure software, however,
should not be patentable because it would damage our economy and our
freedom.

Even if the principle that pure software should not be patentable is
agreed, there is an additional danger of passing a form of words that
accidentally allows patents for pure software or that allows later
amendment (this seems to be happening in Canada).

You may be aware of the problems with the current definition
highlighted by the UK Patent Office workshops which found "the
definition in Article 2 of the draft Directive as it currently stands
was .. ambiguous and too liberal"
<http://www.managinginformation.com/news/content_show_full.php?id=3896>.
This and the work done by the Groklaw community
<http://comment.zdnet.co.uk/rupertgoodwins/0,39020691,39201549,00.htm>
shows there is still much to be done to achieve clarity.

We are aware that pure software patents have been passed in the UK
because of unclear legislation or practice and that that is one reason
for wanting a directive. We therefore arguing for clear legislation
that protects software from patents and ask that you represent our
wishes in Europe.

Yours sincerely