Estonian anti-software-patent petition collects 1200 signatures in 2 days
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20 March 2005 -- A petition in Estonia against software patents has gathered 1200 signatures in 2 days. The Estonian text has meanwhile been translated to English. Hartmut Pilch of FFII finds that it would have been better to present a short petition text with links to existing documentation on the problems of software patents.
Text with Comments
- Dear Member of the European Parliament, The objective of this letter is to express our concern regarding the Directive on Patentability of Computer-Implemented Inventions, which is planned to be adopted in the European Union and which is better known in IT-circles as the `Software Patents Directive'.
It is also better known under this name in the European Parliament.
- More information on the official process of debates and discussions related to the draft Directive can be obtained at the European Parliament web portal [[5]1]. In this letter, we are going to present our position and rationale in that matter, hoping that in the European Parliament, you will represent the interests of small enterprises and software developers of Estonia and the entirety of Europe and stand against the adoption of the Software Patents Directive in its present formulation. The European Parliament has already expressed its position regarding the above-mentioned Directive by making several amendments in the draft in September 2003 [[6]2] to restrict outright patenting of trivial technical solutions and establish reasonable requirements for issuing patents.
There were about 120 amendments, and triviality was not an issue. In particular, there is nothing in the amendments that would prevent trivial technical solutions from being patented. Rather, many amendments were about defining "technical" in such terms that software is excluded.
- By today, the Council of the European Union has reviewed the proposals and offered a so-called `compromise'. The activities of the Council and the Commission in working with the Directive have become an object of criticism on several occasions. There have been repeated attempts of pressure to speed up the adoption of the Directive by using questionable procedures and ignoring the recommendations of the Committee on Legal Affairs as well as the Plenary Session of the European Parliament to abandon the draft and reinitiate the proceedings from the beginning. Despite the protests of many varied interest groups, the draft has been adopted by the Commission and is awaiting the approval of the European Parliament.
The draft was not adopted by the Commission but by the Council, and there was nothing particularly wrong with that, nor was the process too speedy. The text here fails to point out in what way the Council and Commission misbehaved.
- In reality, the `compromise' version of the draft is in no close way related to the amendments recommended by the European Parliament and, as such, neither represents the interests of the undersigned nor the majority of European smaller entrepreneurs and software developers [[7]3] [[8]4].
The word "compromise" refers to "compromise between member states", not to "compromise between Council and Parliament". Again, the criticism is directed to the wrong place.
- We are of the position that the Directive to be adopted should:
- be based on clear and transparent reasoning on the necessity of
- software patents in the European Union, particularly from the viewpoint of small and medium-sized enterprises. We do not know of any studies that have provided adequate justification for the necessity of software patents from the aspects of economy or innovation; however, there have been several studies stating the contrary [[9]5].
- be based on clear and transparent reasoning on the necessity of
It's good to point that out, but the following text on why software patents are bad is not really needed. There is widespread consensus that software patents are undesirable, but there is confusion about what software patents are and why the Council text does not exclude them, in spite of pretending to do so.
- We should like to direct your attention to the fact that in the field of information technology, innovation and development are
"information technolgy" is a bad term, especially in the patent context, where it triggers the notion of patentability. The EP has stated that "Data processing is not a field of technology in the sense of patent law".
- based on cooperation and on the improvement of existing solutions, not on projects developed behind closed doors.
Projects developped behind closed doors also make important contributions, and they are also harmed by patents. The open-source vs closed-source distinction is not really pertinent in the context of the patent question, and it is often used by patent proponents to confuse the issues and create the impression that the patent opponents are a kind of social utopians and iconoclasts who don't want to allow proprietary development models. This letter supports that error.
- In recent years, one of the fastest-developing technologies, the freely
Again "technology" is a bad word.
- distributable open-source Linux operating system, which was born in 1991 on the home computer of a young student in Helsinki, has been able to develop particularly because of the absence of restrictions. The same can be said about almost all of modern everyday solutions, including the Internet, e-mail and the World Wide Web. Legalisation of software patents in the presently intended form reflects the economic interests of larger corporations
This statement is questionable.
Many large corporations have protested against software patentability or kept a low profile, and those that advocated it are usually not putting forward any clear arguments. It should not be assumed in absence of a clear case that software patents are in the interest of anybody.
- but it would decrease the opportunities for small entrepreneurs and private individuals to be involved in software development. It is important to point out that throughout the history of information technology, monumental innovations have resulted particularly from cooperation between private individuals. Software patents will also enable the operation of `patent
Software patents already do that.
Many software patents have been granted by the European Patent Office, and some are being used by patent sharks to attack European companies.
- sharks', i.e. business operators who do not produce anything but who have acquired various trivial patents. Without any product to sell, they are protected from all claims while still being able to establish their requirements against all software producers who use solutions covered by such patents (and whose number will probably include the majority of software developers regardless of their field of activity -- more about this in the next point). Such business will obstruct any innovation and offend the sense of justice of people working in the area of IT as well as many other citizens;
- preclude the possibility of patenting such solutions, algorithms
- and methods which can be described only and purely as software.
Again, this is a very unclear and imprecise instruction for !MEPs. It doesn't tell them which amendments to uphold. And the following reasoning is again redundant in such a letter.
- Unlike manufacturing industries or medicine, where one product is usually tied to one patent, in modern software industry every program is composed, due to the more abstract and mathematical nature of information technology, of thousands of different components, all of which may use patented solutions. This brings about several problems specific to software:
The claim that these problems are specific to software is quite easy to attack and not necessary.
- + firstly, small software developers will be deprived of any
- realistic chance to keep themselves in touch with all patents related to their software, and software development will begin to resemble walking in a minefield, where they will never know whether or not another line in their code will result in costly legal proceedings;
- may well become astronomical because each patent owner will want to receive a part of the sales proceeds. Until now, patents have often been licensed under a scheme by which the patent owner is paid a certain percentage of the amounts received from sales. It is easy to predict a situation in which the software developer will be forced to pay licence fees exceeding 100 percent of the sales proceeds due to the great number of patented technologies in one software program;
- if the Directive nevertheless enables the patenting of file
- formats and communication protocols, ensure full and explicit rights to develop competing products compatible with the patented formats without any requirement to pay licence fees.
This again is abstract and vague, not a clear instruction. And it assumes without justification that the Parliament will fail to uphold its amendments of September 2003. It spreads a kind of panic atmosphere.
- The development of today's computer networks has been possible only because of the base protocols and data-exchange standards being open and free from the weight of patents. When all rights to a communication protocol are privately owned, the open Internet and other channels of data exchange may turn into closed and fragmented environments controlled by different interest groups. Another danger stemming from the patenting of data-exchange standards is constituted by the possibility of placing the users in a situation in which using a certain software application is a pre-requisite for carrying out certain elementary operations (e.g. using electronic citizen services) and the development of alternative software is limited by the control of the patent owner;
- limit the validity period of patents in the area of information
- technology.
This is in violation of Art 32 TRIPs which requires 20 years of duration for all patents.
- In the situation in which an average software product has a useful life of five years, the respective patents should not be valid for a substantially longer period. Each patent will not only restrict the development of one software application but, rather, the development of the entire area of software of similar functionality;
- establish clear and strict rules on the examination of patent
- applications related to information technology.
Again an abstract and unfulfillable requirement that spreads defeatism without reason. The parliament can not establish such rules.
- The practice has shown numerous examples of patents issued without any background research and covering solutions which are obvious to any computer expert and which often have already been in use for a long time [[10]6] (inter alia, there are patents covering the Internet hyperlinks, which take the user from one webpage to another). Although it is possible to revoke such patents in court, this will be far beyond the resources of most small or private software developers and will, all in all, remarkably increase the costs relating to software development, thus being outright contrary to the original purpose of patents, which is to protect innovative solutions.
What follows consists again of statements about reality which very few of the signators are able to verify. It is thus easy to dismiss.
- In summary, we should like to point out that practice related to software patents has shown that patents are acquired by, first of all, large companies, who cross-license those patents with other large companies. There will be no choice for small producers, whose interests should theoretically be protected by patents. Since, inevitably, such small producers' software applications use methods already covered by patents, these producers are, in turn, forced to cross-license their patents with the large companies, thereby losing any advantages that would have been otherwise provided by the patent. There should also be consideration of the fact that if software patents are legalised, European entrepreneurs will have to pay a large if not major part of the licence fees directly or indirectly to patent owners in the United States of America. As a result, the competitiveness of the entirety of European information technology on the world market will be compromised.
Again speculation, probably true, but unsubstantiated and not substantiatable by the signators.
- Regarding software one cannot apply the same rules as are applicable for the manufacturing industry and we, the undersigned, are convinced that the existing copyright laws already provide sufficient protection for software developers. Additional patent legislation would only further concentrate the software market into the hands of a few companies, provide favourable conditions for monopolies and retard the progress of the whole area of information technology. We hope that we have succeeded in explaining our positions to you and that you will help to protect the free development of European information technology. Thank you in advance. [11]1397 signatures
In general this letter is too long, and it is not adapted to the situation, where the second reading has not started and the parliament faces a few more options, such as
questioning the validity of the "Common Position", asking the Council to clarify what happened on 2005-03-07
- rejecting the Council's proposal
- adopting the September 2003 amendments without much change.
It is a good idea to start a local intitiative and gain supporters for it by a petition. But petitions should be short and focussed on a few essential statements that the authors are able to verify, together with demands that directly reflect the interests of the signatories (e.g. rights to be safeguarded). For the detailed argumentation, one can point to background documentation. Good indtroductory material in Estonian exists at http://www.nosoftwarepatents.com/.
