Re: [Fsfe-uk] Software patents

[Bernhard Kaindl]

The last sentence of the answer of an British MEP to
Phil Driscoll <address@hidden> was:

> Labour Euro MPs will continue to monitor closely the directive through the
> European Parliament.

Phil, maybe you want to look at a mail written from
Jonas Maebe <address@hidden> to a Flemish socialist MEP.

Jonas translated the original Dutch version to english, I hope it could
be useful to you. As you are english native speaker, you may see to some
improvements to the phrasing, please excuse me, most of us didn't have
the opportunity to stay in england for some time, so you should carefully
read thru it and also change anything personal to Jonas to your situtation
before sending it anybody.

If you do, please send the improved version back, I would like to look at it.
Bernhard

Here come's the letter from Jonas:
------------------------------------------------------------------------

Hello,

Here's the English translation of my letter at
<http://elis.ugent.be/~jmaebe/>. I got a very nice compliment about it
(the Dutch version) from Sonja Steenhaut (assistant of Kathleen van
Brempt, Flemish socialist MEP, part of the working group with Laurence
Van de Walle): she said it was the only mail she forwarded to the MEP,
because it was the only one she understood :). Comments I came up with
during the translation are included in [].


Jonas

***
Dear Members of the European Parliament,

I am a master of sciences in informatics and am currently working on my
PhD at the University of Ghent. My employer is the Institute for
Encouragement of Innovation by Science and Technology in Flanders (IWT,
<http://www.iwt.be>). I have written you already once before regarding
the the proposal regarding the legislation concerning unsolicited
email. I am very glad that back then, the European parliament firmly
prioritised the rights of the individual and approved of a strict
"opt-in" policy. Currently, there is once again a dossier on the agenda
about which I hope you will make the right decision.

After reading the report from the rapporteur
(<http://www.europarl.eu.int/meetdocs/committees/juri/20030616/
488980en.pdf>) regarding software patents, I am very happy no-one wants
to introduce a legislation like the one in the USA [note: I was
referring to McCarthy's comments/justifications, not about the actual
contents :)]. Nevertheless, I think that the current proposal still
goes way too far and that it contains several misleading statements
which should persuade you to approve it. I will start by giving four
specific examples of such statements together with counter arguments,
after which   I will conclude with an analogy that will hopefully
convince you that software development is fundamentally different from
other industry branches that currently know patent protection.

Specific remarks with regard to the working document:

1) p. 9, amendment 8, article 16: "With the present trend for
traditional manufacturing industry to shift their operations to
low-cost economies outside the European Union, the importance of
intellectual property protection and in particular patent protection is
self-evident."

* Although at first sight this may indeed seem self-evident, it isn't
evident at all. There is only one possibility for software patents to
benefit the European software industry (and by extension the whole
community). This is in case currently a lot of imitation of innovation
occurs within the European Union (since European patent law does not
have any influence anywhere else), in a way that discourages or hampers
innovation.

First of all, software patent law is completely independent from the
fact that manufacturing is being moved to low-wage countries; this
discussion should be completely independent from that matter and only
look at whether or not software patents can benefit the European
software industry. Secondly, I will further on give several arguments
and refer to studies showing that a strong protection policy regarding
software and computer based systems is counterproductive.

Finally, the fact that Europe does (not) yet have [enforceable]
software patents is at least also an advantage for European companies.
After all, they can already perfectly acquire and enforce software
patents in countries stuck with a slack jurisdiction on this matter. On
the other hand, foreign companies which are negatively affected by this
situation, cannot do the same here and not "attack" European companies
on their home front.


2) p. 18, point 4, "The impact on small and medium-sized software
developers", general:

* This is indeed a point that is extremely important. The rapporteur
states that it should be followed very carefully, which shows that even
she is not entirely certain of whether patents are so great for that
kind of entrepreneurs. Then again, she does have every reason to doubt
this. After all, most software patents belong to large companies, even
though they are not necessarily the biggest innovators (see
<http://www.base.com/software-patents/scoreboard.html>). A good example
of how they can abuse this advantage, is the behaviour of IBM in the
USA.

IBM owns more than 30000 software related patents [actually, I think
this is wrong. I think they own 30000+ patents, but they're not all
software patents]. The consequence is that there are barely any
programs that don't infringe on at least one of those patents (see
<http://swpat.ffii.org/players/ibm/index.en.html#gajn>). When IBM
notices a new technology to which it does not yet have access, it just
verifies which of IBM's patents the the innovating company uses without
having a license for it. Next, it contacts the company with a proposal
to cross-license: IBM is willing to let the company use its own
patents, if the company lets IBM do the same. If the company refuses
this offer, IBM can sue them (after all, they are using IBM's patents
without their approval) or make them pay dearly for the right to use
those patents.

This means that small and medium enterprises only enjoy "protection"
via patents with regard to other companies of the same size, but large
companies can still take whatever they want. So for large companies,
not much changes if software patents are allowed, apart from the fact
that they start investing more in patents and less in research and
development. Afterwards, they recoup their patenting costs from smaller
companies, which results in these companies also having a smaller R&D
budget. The bottom line is that there is less innovation, especially
where it counts most (small start-ups).

I want to state clearly that this is not a purely theoretical
possibility, this is the way IBM currently behaves in the USA. There is
no reason why they (or another large - possibly even a European -
company) could not start doing the same in Europe. IBM currently cannot
use this tactic in Europe, since we do not have enforceable software
patents here. In the USA however, some people fear that over time the
whole software industry will have to pay a 1% to 5 % "software tax" to
IBM (see link at the start of this answer).

A final remark with regard to this point: suppose someone wants to
create a very innovative product, but he wants to avoid using any
patented techniques. How is he supposed to do that, given that IBM
alone already owns 30000 [same remark as above] software patents?
Almost no-one can afford the small army of lawyers necessary to figure
this out.

Currently, someone with a computer at home can perfectly start doing
software development and create a small company that way. He does not
have to fear that all his efforts and investments are in vain. After
all, when he brings his product to the market, it is not possible for
another company to tell him that his program is infringing on patents X
and Y and that he cannot get a license for them (or only a
prohibitively expensive one). So software patents create a very
uncertain framework for enterprising people to work in, which obviously
discourages such people. You just do not need a huge factory or a big
company infrastructure to develop new software (or software
techniques), just creative people with a computer.


3) p. 18, point 4, last sentence of the first paragraph: "Moreover, a
study conducted by the Intellectual Property Institute in London has
found that 'the patentability of computer-related inventions has helped
the growth of computer program-related industries in the US, in
particular the growth of small and medium enterprises and independent
software developers into sizeable indeed major companies'."

* On the other hand, there are studies showing that the patentability
of software does not contribute at all to the growth and progress of
this industry. An example is the paper at
<http://www.researchoninnovation.org/patent.pdf>. It first presents a
complex mathematical model, which is then verified with reality. Figure
5 on page 30 clearly shows that the percentage of the budget of
North-American companies spent on software R&D, strongly diminished at
the start of the eighties when software patents were introduced in the
USA. From then on, a part of the research budget is simply used to
acquire patents (and probably also to fund the accompanying lawsuits).

I would strongly suggest you to read at least the introduction (pp.
3-4) and the conclusion (p. 21). They clearly explain how this can be
and why it is logical that patents do not encourage software
development, but hamper it. This is caused by the fact that the
software industry is a lot more dynamic than the classic manufacturing
industry.

One does not have to build a completely new factory or buy new
computers to simply develop a new program. Software development
consists almost entirely from incremental and complementary
improvements (in other words, software development is rather
evolutionary than revolutionary). When these improvements can occur
unhampered (i.e., without the intervention of patents), over time they
benefit both the original developer and the incremental innovator - and
eventually the whole industry and the community at large. This is all
explained and demonstrated in that paper.


4) p 19, point 5, general

* This point partially confirms what I mentioned in the previous
answer: companies invest a considerable part of their research budget
on patenting the results (instead of patents allowing them to gain more
money from their innovations, allowing them to raise their research
budget). Since the ultimate goal of patents is to encourage innovation,
this is a completely paradoxical effect. The last paragraph concludes
with "Moreover, academic studies have shown a link between R&D
spending, patent applications and productivity." What exactly this link
is, is mentioned nowhere at all. The paper I referred to in my previous
answer, shows that it most certainly is not positive per definition.


Finally, I would like to quote a comparison made by Mr. Richard
Stallman (<http://www.stalllman.org>) in a speech he gave at our
university. Although I am not in complete agreement with his opinions
on all issues, in this case he absolutely hit the nail right on the
head. He compared software development to composing a symphony.

Just like you cannot simply throw together a few known "musical
techniques" and get something that sounds beautiful, you likewise
cannot just mix a few (patented) software patents and get a great
program. A program only becomes good because of the many hours of
detail work spent on it - like the searching of errors (bugs), making
the interface pleasant to use and the general finish - not because it
uses one or other technique.

In the same spirit: Beethoven is generally considered quite progressive
for his time. Nevertheless, if musical patents had existed in his days,
he would not have been able to make any of his compositions without
infringing on any of them. He may have been good, but he was not that
good so that he could reinvent music from scratch. Software development
is identical: you can be a fantastic software developer, but you cannot
just reinvent informatics from scratch.

Both music and informatics are based on mathematics combined with the
creativity of the composer/developer. Would you be a proponent of
patents on music?

With friendly regards,


Jonas

***