Letter 2004-05-13 by Robert Osfield to CEC Commissioner Liikanen
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phm
- it should become clearer more quickly what exactly the sender wants the recipient to do. Asking questions is one way of prompting action. Anything that isn't designed to prompt an action could be left out to shorten the letter. General remarks that are not specific to the relation between sender and recipient are better transferred into external documents or replaced by references to such documents.
Dear Mr. Erkki Liikanen,
I am founder and owner of OpenSceneGraph Professional Services, a software company based in Scotland. My company specialises in the development of real-time graphics software, with a user base which include large corporation/organisations such as Boeing, NASA, ESA, Sony, !BAe, Indra, Halliburton, Dera, US Army/Navy right down to small business and university researchers. My company develops both open source and closed source software.
I write out of concern over the Irish Presidency's proposal for the directive on patentability of "computer-implemented inventions". Perhaps I should rephrase my concern: like may others in software industry I am simply appalled by the new proposal, as its has very serious consequences to the viability of my own business, and on the user base that depends upon my software.
The new proposal scraps all the key ammendments brought in by the EP in September 2003, and introduces introduces program claims[1], thereby making the text even more pro-patent than the Commission's proposal of February 2002. This brings the text in line with the recent practises of the European Patent Office (EPO), which has been systematically granting broad and trivial patents on pure software in anticipation of a planned change of law since 1986 and especially since 1998. Since DG Infosoc appear not to have objected to these very serious departures from the EP text of 2003 and from the Commission text of 2002 (in which the absence of program claims is widely believed to have been an achievement of DG Infosoc), should it be assumed that DG Infosoc now supports patentability of "computer-implemented" algorithms, business methods and of program texts, as practised by the EPO?
If DG Infosoc does now support unlimited patentability of software could you please provide details of any independent economic studies that show such unlimited patentability of software is good for European business and society in general?
With 76% of software patents granted by the EPO being from outside the EU [2], it would at least seem at a first glance to suggest that the bulk of revenue from licensing of software patents would leave the EU. Do DG Infosoc have an analysis of the value of the licensing of software patents and its effect on the trade deficit?
At a smaller scale, what this deficit actually means to the average EU software business is that they will incur greater costs than they receive in revenues from software patents, and therefore will be less competitive, less profitable, and have less freedom to develop features that customers require, not to mention the greater risks due to offensive patent litigation. Clearly software patents are not universally good for the industry. What types of business does the DG Infosoc expect to gain which types would loose from unlimited software patentability?
Legal analysis [3] of international treaties (Berne, Trips etc) clearly shows that computer programs should be treated as works of literature, and therefore are covered by copyright, futhermore works of literature cannot be treated as inventions, and therefore cannot be covered by patents as doing so would contradict the rights governing literature. The Presidency draft treats software as patentable therefore is in contravention of these treaties. Does DG Infosec believe that computer programs are works of literature or invention?
I do not envy DG Infosec position, no doubt under pressure from the patent community, and well funded lobbying from multi-nationals which are pushing for unlimited patability of software, and on the other side pressure from SMEs (which form economic majority in the IT sector[4]) and the EU community at large pushing for the continuation of copyright as being appropriate protection for software. It might be worth noting how much opposition software patents have in Europe - over 320,000 people have signed the Petition for a Software Patent Free Europe [5], this is 1/3rd the size of population of Brussels. That'd be quite a welcoming party if all the signatories turned up on your doorstep at once.
Of course whether they'd be welcoming or hostile depends very much on DG Infosoc's actions over the coming weeks. I would encourage the DG Infosoc to consider very careful what is best for Europe, and if it has any doubts about what is the best way forward then it should do everything in its power to defer the Council decision on the Presidency proposal, due on the 17th/18th May meeting of Ministers, and refer it back for further discussion and refinement.
- Your sincerely, Robert Osfield
Proprietor, OpenSceneGraph Professional Services. 29 Hamilton Way, Prestwick, Scotland. --
[1] Analysis of Presidency text:
[2] Analysis of Origin of Software Patent granted by EPO
[3] Analysis of the legality of Software Patent w.r.t internation treaties
[4] The Economic Majority in the Software Patent Debate
[5] Petition for a Patent Free Europe.
