Campaign Against Software
Patents Campaign Against Software
Patents
Last modification 09-29-2002
Proinnova has created a free translation/adaptation in Spanish of the March 2002 version.
Argumens Against Software Patents
Myths in Favor of Software Patents
Dangers of the Proposed Directive
CALIU's Interest in the Subject: Software Patents Threaten Free Software
The European Patent Convention [3], including 20 European countries, created the European Patent Office[4] (EPO) and specified in aticle 52, point 2 that computer software cannot be patented (it is protected by copyright). Nevertheless, the European Patent Office has granted more than 30,000 software patents, in part because of pressure from the USA and Japan and in part because approving a patent brings sizeable fees, while rejecting a patent brings nothing.
The European Commission has not only consented that the EPO ignore the law, but has tried without success to modify the European Patent Convention to cover for the excesses of this office. All serious economic studies [6] and practically all software engineers recommend against software patents, which only benefit patent offices, patent attorneys and maybe some multinationals in the USA and Japan. Not even the economic study [5] the Commission requested from a company in the patent business (and as such scarcely impartial) could justify software patents. The study writes "any move to stregthen IP protection in the software industry cannot claim to rest on solid economic evidence."
The Commission launched a public survey on the subject, perhaps expecting
the support of patent functionaries and intermediaries, but the software
sector also participated and those opposing software patents exceeded 90%.
The analysis [8]
requested contained a poor summary and ignored
many of the opinions received [7]. The summary even
manages to declare the less than 10% favoring software patents an "economic
majority."
Instead of understanding that it is mistaken in insisting in the patentability of software and taking measures to advise the European Patent Office to respect its boundaries, the Commission still wanted to augment its authority by awarding itself control of the new European patent community [9] (5 countries, including Spain, opposed this measure because of linguistic issues, but it finally was agreed in March 2003.)
Recently, to complete the aggravation, the EPO, seeing the ineffectiveness
of democratic control over its management, published new guidelines [28] that, excusing itself in inconsistent sophistries,
encouraged its examiners to approve software patents.
In mid-February, an European Directive proposal was circulated that was
leaked to Eurolinux, an association of companies and entities opposed to
software patents. Eurolinux denounced the proposal--to be presented by the
Commission imminently--as having been written by the Business Software
Alliance, an association of American software multinationals such as
Microsoft and Adobe.
Eurolinux warned of the danger [10] that large
multinationals controlled the European policies via the Directorate General
for the Internal Market. It is known that software patents present grave
legal risks for free software such as GNU/Linux, the principal competitor to
Microsoft, with an important European presence.
Indeed, on February 20th, 2002, the Directorate General for the Internal Market published "Directive of the Parliament and of the Council on the patentability of computer-implemented inventions (COM(2002) 92 2002/0047) [1], a press release, and a list of questions and answers. The Directive was the same as the one leaked earlier, except for very few minor changes.
The Directive proposed to extend software patentability, forcing EU member countries to ignore arcticle 52.2 of the European Convention on Patents, based on reinterpretative wordplay [11]. What it does is codify European Patent Office jurisprudence, as it applied so far, as law, in violation of the Convention. As the Commission has not been able to modify the European Patent Convention, they want to introduce contradictory legislation to make the prevailing confusion more difficult to control, and thus cover for the European Patent Office. In this way, the Commission wants to complicate any initiative for democratic control of the Office and eliminate incentives for any appeal against granted patents, because it would be clear that whatever the office says, in accord with the Convention or not, would be considered law. Furthermore, these contradictions distance the rulings from administrative law, and will require even more intervention from intellectual property professionals to determine what are patentable discoveries.
The proposal starts from mistaken suppositions, justifies itself with generalized dogma about patents that does not apply to software, and ignores the opinion of experts and those interested in the field. It first declares software as a technical field. Then it imposes the condition for patentability that the invention make a "technical contribution." But the software itself would be a technical contribution, and as such this condition does not exclude anything that could be done with a computer. What is more, the Directive contains much redundancy in the measures for patenting logical works (it is written to resist partial changes) [30].
The Directive expands the field of patentability, but does not provide any
clear, strict definition of where patentability ends. Business methods,
games, mathematical algorithms and any other concept that could be expressed
in terms of software could be construed to show new applications of
computing, hence to technology, and therefore make "technical contributions"
and be patentable.
The proposal tries to imply that it leaves unpatentable areas, that
software programs "as such" could not be patented, and interprets software
"as such" as merely stored and transmitted programs and abstract algorithms.
However, these same programs, when used, become processes and can be
patented. This limitation is not such, because it permits patenting all uses
of abstract algorithms, and any program that works. The original meaning of
the European Patent Convention was merely explicative, it excluded all
software from patentability, but clarified that when an invention was
patentable, the mere inclusion of computer software did not render it
unpatentable (such as in industrial control systems). The patentability had
to be judged without considering the software, and it would be the system as
a whole that was patented, no its software. This was the interpretation
made in a German court [13] that defended
the technical contribution criterion [29] (that is, that
the means used in an invention or the wording of the applicationg are not
what determine an invention, but what the invention provides that is a novel
use of controlled forces of nature for a defined end).
At the same time the Commission published the proposal, it distributed a
press release to explain the content [14] and a list of
questions and answers [15]. These materials
contradicted [31]
the Directive itself and reality to some extend.
The Commission says the Directive is necessary in order to harmonize the legislation of member states. But it only refers to the differing judicial interpretations (some follow the written law, others, European Patent Office decisions, but in fact, there are divergences within single countries). The law governing patentability is very consistent throughout the European Union. In fact, all 15 member states (plus most candidate members and 5 non-member states) follow one European Patent Convention. A law cannot be made more uniform than this. Arguably, other details could be harmonized (such as fiscal patent incentives), but not what the Directive covers. To add a directive contradicting the only applicable convention can only serve to confuse the issue. The reason for the divergent judicial interpretations is the irregular practice of the EPO, and can be corrected by reforming or replacing the office, not the law.
It says the Directive will be stricter than the USA. In fact, instead, the Directive does not impose more limits on software patents than purely rhetorical ones. In fact, there is a manual [70] (that the author has not read because it costs some 300 euros) on how to patent software at the EPO.
The Commission says the Directive does not change the law, but it voids of
meaning the European Patent Convention point 52.2.c. In fact, it confuses
the practice of the EPO with the law when it says that changing the law to
say what the administration already does is not changing anything. In
reality, the change validates 30,000 patents improperly granted (primarily to
American and Japanese multinationals) that so far were potentially useless in
courts of law. The function of the legislature is not to echo the practice
of the administration but to decide which behavior benefits society.
The Commission says the Directive will clarify, but offers no examples of non-patentable software. It goes so far, when discussing the controversial "one click shopping" patent granted to Amazon.com, to say that patenting this would be "highly unlikely," but that it does not want to rule absolutely on this matter because the EPO is studying it. This Directive means renouncing any legislative control over the EPO, and demonstrates that the new criteria are so ambiguous that not even those who propose them are capable of applying the rules to an example they themselves have chosen. The objective, then, of clarifying the rules remains debatable, and the only effect of the Directive is obstructing the solution of the current muddle.
The Commission says the Directive does not apply to abstract algorithms,
but it does apply to any application thereof, no matter how general, because
patenting the algorithm in software jargon (that now would be considered a
patentable technique) would suffice to make a "technical contribution" and
therefore be patentable.
The Commission says that the European Patent Office does good work, but examples of trivial and dangerous patents abound [12]. Not only this, but the problems turn out to be structural, with the judicial and executive branches in the same organization, with economic incentives biased to approve rather than reject patents [16]. Because of this, the Dutch Parliament requested that the EPO's charter not expand until the current problems are resolved [17].
The Commission says that the consultation justifies the Directive proposal, when in reality the biased study commissioned by the Commission [5] demostrates that more than 90% of the responses reject the patentability of software, and a more accurate analysis [7] revealed that the only ones interested in the Directive are the European Patent Office, the Commission and some multinacionals in the USA or Japan that could more easily eliminate small-business competitors and reinforce their monopolies.
The Commission says that patents foster innovation, when all serious studies [18] demonstrate that in software, the contrary is true.
There are many arguments against applying patents to software. Although the burden of justifying a change in legislation should fall to those who propose it, and justifying an act violating the law to those who commit it, this document presents several motives for maintaining the traditional interpretation of the European Patent Convention:
Software programming is very incremental. Any application contains many
small techniques and practices that if they were patented would impose an
intolerable burden on development and commercialization of software, due to
the cost of verifying that each detail of the software is not patented. In
fact, standards organizations such as the Internet Engineering Task Force
(IETF[38]) or the Institute for Electrical and
Electronical Engineering (IEEE[37]) use patent policies
that do not oblige companies participating in standards work to declare
related patents up front, because they believe that the work would be too
costly, and companies would not participate. If companies find it too
costly to search their own patent portfolios, searching everyone else's
patents for possible infringements might be impossible.
Because software, practically speaking, is applied mathematics, a basic
technique may have diverse applications, and with only a few patents in that
area, whole branches of computer science would be barred from use. For the
great oligopolists, this does not pose a problem, because they frequently
cross-license patents to avoid endless lawsuits (defensive patent
accumulation). Small and medium businesses could hardly afford a few
patents, but would be practically prohibited from enforcing them for fear of
countersuits from large corporations claiming infringement of some other
patent. No person can re-invent all of computer science and still manage a
business.
Software patents monopolize ideas. To obtain them, one only has to present a description of what one desires to achieve and how to achieve it. In disciplines that work in the physical domain (machinery, chemistry, pharmacy...) the invention discovery phase requires considerable investment in experiments and studies to verify a solution really is viable, because in reality, what is done is to explore a small part of the working of the universe and investigate whether it can bring benefits. In software, however, the range of possibilities for a computer are known beforehand, and all that is needed to formulate a problem and plan the solution is reason logically about what is already known. The substantial investment comes afterward, in succeeding making everything function correctly, in combining all the small parts and controlling their interactions--namely in writing the program. The fact that consultants frequently offer a preliminar analysisi on a project before signing the contract, for example, demonstrates this, even if the development price can be very high. The substantial portion of the investment in software innovation remains protected by copyright, and does not coincide with compensation that could be provided by patents.
Software is a sector with strong natural tendency toward monopolization.
Network effects (the fact that a program becomes more useful if more people
use it), interoperability and compatibility problems, the low cost of massive
reproduction of software, the difficulty of inspecting software distributed
without the source code, the learning curve and the rapid evolution of the
market--all these contribute to the creation of monopolies that are harmful
to consumers. Software patents would cause yet more monopolies--the 20 year
life of the patent is a practical eternity in software.
Software programs could be considered mechanisms, but they remain descriptions of processes, and as such, information. An automotive engineer may patent a motor, but she would not patent the schematics of the motor as they are only information, regardless of their level of detail. The patent does not impose any restriction on the drawings (to the contrary, the objective of the patent system is publication and dissemination of industrial knowledge that would remain secret otherwise). Patents impose limits only on the commercialization of motors as described by the drawings. Software programs, though, are their own schematics, and the idea of patenting them contradicts the essence of patents. The fact that software is information changes the market's -- and society's -- behavior. To apply patents to software is to extrapolate a system designed for the manufactured goods industry to the information distribution business, or worse, to a community of people (with computers and networks) that interchange knowledge more effectively than ever, an information society.
Innovation, which in a manufacturing industry required patent incentives,
in the software industry is an almost inevitable consequence of the market.
In manufacturing, companies could compete on many fronts: via raw material
supplies, production capacity, distribution logistics... Companies did not
have to innovate, they could simply construct more factories and make sure
that they were the only ones who could fulfill large orders. Or they could
place warehouses in strategic locations to reduce costs. None of this
results in new knowledge or better products for society. The patent system
offered an incentive to spend large sums on research to obtain new
technologies.
In software, companies cannot compete on any front other than innovation.
Production capacity and distribution are practically infinite for all
participants because the systems of storage (disks) and distribution
(networks) are abundant and cheap. And the supply of raw
materials--software, libraries, functions, protocols, formats and
knowledge--are likewise abundant, at least in the absence of patents, which
would create an artificial scarcity of raw materials. WordPerfect authors
cannot hope to compete with Microsoft Office simply because they are capable
of manufacturing more CD-ROMs with their software, nor because they
distributes software to customers more quickly. To compete, WordPerfect must
offer features that Microsoft Office does not offer, or offer better
implementations of similar features. The only case in which a software
company can allow itself not to innovate is when it enjoys a monopoly--such
as the one created by patents.
The phenomenon of free software, and other software distributed with the source code (needed to understand its function), demonstrates that not only is there sufficient incentive to innovate without patents, but that there are even enough incentives to encourage divulging innovations. Therefore, the patent system is unnecessary. Perhaps during the industrial revolution it was helpful to have a library of patents that organized technical knowledge. But software engineers don't use patent databases, which are cryptic, difficult to search and read, too slow and clumsy to follow the rate of software innovation, and of little practical value. Free software does not only reveal its innovations and permit others to reproduce them (like patents), but it offers the revelation and the innovation ready to be studied, tested and used, or modified to adapt it to a related problem, without having to be rebuilt from scratch. Hence, programmers reuse, innovate and divulge their innovations, forgoing the patent system.
True, innovation in software is typically incremental, combinatorial and difficult to value. After all, all software is just zeros and ones, but today computers help design medicines, win chess tournaments, and interconnect in an immense Alexandrian virtual library, and only a few years ago did none of these things. History shows that computers and software have been more productive the more open they were. So maybe more important than innovation for software is the ability to use freely the innovations, the symbiosis and the combinatorial explosion of creativity brought by access to the massive quantities of networked information and a universal machine to operate on it: the computer.
The fact that software is information impinges on basic rights. Software patents involve restrictions on freedom of expression that patents in other areas do not. If patents have always been a trade of freedom of commerce for new knowledge, we may now find ourselves in the situation that we pay for knowledge already likely to be found with freedom of commerce and expression. After all, even if a professor or writer can continue explaining patented software including the source code (because patents only limit commercializing an idea, not researching or teaching it) there is no way to separate these functions from commercial use, because whoever receives the source code can use it for what the patent prohibits. For example, an author who wants to explain LZW compression techniques might want to include a CD-ROM with example source code for the reader to read and test. But if the author sells such a book, he could be accused of commercializing patented software because it permits the reader to do what the patent limits, aside from studying the program. An author writing about car engines does not face this publication restriction, because for as many drawings, schematics and simulations as he includes, nobody would accuse him of selling patented engines.
In the same way, to express oneself in an information society, digital information must be transmitted. And if we allow patenting communication protocols and file formats (such as ASF[32] or MPEG[2] video, MP3[33] audio, or the two most used image formats on the web, GIF[35] and JPEG[34]) we will be giving to private companies the possibility of controlling our means of expression, we will be selling them the right to censor [36] or place tolls on communication [2].
Finally, another imbalance in the manufacturing patent model applied to software is illustrated by the fact that the restrictions that traditional patents impose on the commercialization of products affects only a small part of the population, those that have a factory capable of making the patented product. However, the profit obtained (new products) benefits a large part of the population (consumers). In software, the "manufacture" of patented software is available to anyone with a computer. Creating software from scratch requires knowledge (although nothing overly exotic) and time, but the machinery for "manufacturing" patented software is available to the larger part of the population, and as such, the restriction imposed affects as many people as benefit from the innovations.
Furthermore, software patents discriminate against some business models. For example, the authors of shareware (software that can be redistributed for trial use and for which the user must pay only when deciding to keep it), gratis software (distributed freely; business comes from training, maintenance, customization, service, etc), and Free Software (discussed below) cannot know how many copies of their software exist in the world, and as such, could not pay per-seat licenses, nor do they make enough money to afford unlimited use licenses. Not only these software authors, but all authors, regardless of business model (if any), will find themselves prevented from selling or distributing software created independently, and hence their author rights will be eroded and legal uncertainty will be imposed on them from the impossibility of knowing if any algorithms in their software are under patent.
All these topics are fundamental, but independent of the quality of the patents and the correctness of the patent office. They're issues that arise from the incompatibility of the nature of software and the patent system. By adding patent offices that are scarcely motivated to evaluate patent applications correctly (as patent examiners claim [19]), the situation becomes even more grave, and leads to situations such as the patenting of trivial techniques [12], for example, the use of the well-known binary operator XOR (exclusive or) to redraw an image on the screen [20]), patents exaggeratedly broad (like the British Telecom patent for web links [21]), or patents on fundamental interoperability standards. No indicator suggests that the quality of software patents will improve [27] (certainly, the Commission has not tried), and it seems counterproductive to dedicate software experts that could be innovating to examine the patents of software engineers in industry that, instead of innovating, are writing patents and worrying about infringements on other patents.
Numerous studies [22] discuss, in more sophisticated and rigorous methods, the inconveniences of software patents. Hopefully this summary has explained the basics. No study to date has shown economic benefit in extending patents to software.
As much as we have looked, we have not found real arguments in favor of
software patents that lead us to think that being in favor or against
depended on initial principles or values. All the texts we have found
favoring software patents limit themselves to repeating a few unjustified
bits of dogma. By repeating this mantra, people wind up believing it, or at
least becoming accustomed to using it as an excuse to avoid thinking.
False. Perhaps in mechanical engineering this is true (one would have to ask mechanical engineers). But in computer science only innovating is the only way to compete, and patents prevent competition, thus discouraging innovation. As we have already discussed, the only way to survive in the software business without innovation is enjoying a monopoly, like the one a patent ensures.
False. To the contrary, patents are a cost (mean: 29800 EUR/European
patent [71]) and a distraction (between 2 and 6 years in
transaction). Each software program infringes many patents, and large
organizations have vast patent portfolios. Thus, smaller businesses cannot
use patents against larger ones, because they cannot risk a counter-suit.
Larger companies cross-license patents to avoid mutual lawsuits, so they do
not notice the harmful effects of patents [72]). But
smaller businesses, with small patent portfolios, have no power to negotiate
cross-license agreements. So odds are against them. In Catalonia, more than
2/3 of the workers in IT and communication companies of more than 10
employees work in companies with fewer than 200 employees [73]. That means that the effect of software patents on
smaller businesses should be a political priority. Larger corporations do
not provide the majority of jobs.
False (or it should be). We have already seen that patents are a cost and
distraction for small businesses. Hence, their investors should not value
patents positively because new companies will not be able to use them
effectively. Ideas in computer science are not expensive to obtain (because
the functionality of a computer corresponds exactly with computer science
theory). To have patented ideas in computer science does not assure success
[74], the ideas must be brought to market successfully
to bring returns. Therefore, it is doubtful that investors should assign
value to such ethereal capital (in other fields, such as pharmaceuticals,
where obtaining a patent requires experiments and assays, a company has more
reason to believe the idea will work). Even so, valuing ideas does not
require monopoly status, or seals from the European Patent Office, who
clearly states that a patent is not a sign of technical excellence.
After the .com crisis, which attracted risk capital exaggeratedly based in possibilities and business models that were more promising than demonstrated, if investors of venture capital remain who wish to risk money, they will be well advised to ensure they understand the business in which they invest, instead of hoping that an idealized entity like the Patents Office does their due dilligence. Valuing a new company by the patents it has obtained, without considering the patents held by the rest of the market, is dreaming of things that will probably never be, and all society will be better off when venture capital learns it.
Justifying software patents because they serve to fool venture capital and obtain money for companies which otherwise would not have it is dishonest and unsustainable in the mid- to long term.
False. CALIU do not demand excluding software exactly from patentability.
It is quite true that all logical creations are, in some way, equivalent,
and it is complicated to decide whether a spreadsheet, a Postscript document,
an electrical circuit designed in VHDL or a web shop is software or something
else. But it does not matter. None of these things should be patentable.
The question is whether the patent describes anything novel in the material
world, not whether it is implemented in software or hardware. And the
material world is easily separable from the world of ideas. Nothing that
does not require experimentation (observation in the physical world) deserves
a patent.
False. If the mayor sells guns, everyone will possibly want to buy a gun,
even if they believe that the mayor should not sell them. Patents function
in a manner similar to a cold war, where all sides accumulate weapons to
dissuade their adversaries from attacking with theirs. This does not imply
that any country wants such weapons if no other country had them.
The reality is that although the Commission issued a study that was hardly
impartial, and commissioned the study from an association of patent
consultants, they could not hide that more than 90% of the 1400 responses
were contrary to software patents. There is a petition requesting that
software patents not be legalized, with more than 140,000 signatures, and
nobody has come out in favor of software patents.
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False. No motive exists for prohibiting independent intellectual creation.
Free competition finds its foundation in the possibility for different
producers to offer similar products from which consumers choose.
An author's rights permit prohibiting that anyone use someone else's work, because the expensive part of software development is la that which lies in the program source (see arguments above). The fact that things like la funcionality, the user interface, the algorithms, the data structures, or other intangibles do not fall under a property law is not necessarily bad. Air, sunlight and feelings cannot be appropriated and neither should they be. In fact, creating property rights for things, especially those not reduced by sharing, must be justified, and patents for logical creations has no justification.
The people that uses this argument, normally busca a safety additional for themselves, voldrien to have patents to controlar la seva competition, that consideren injustificada, and do not stop to think about the effects that tindrien sobre ells patents of the others. És possible that els ciutadans ens sentíssim more segurs if we walked the streets with rocket launchers, but having the streets full of people with llença-míssils no is en absolut la manera of millorar la safety ciutadana.
Hi ha estudis jurídics that neguen that this sigui cert[75]. The World Trade Organization (WTO) TRIPS requires that patents be available for "inventions in all fields of technology [...] as long as they have industrial application". But this does not imply that the software has to form part of this technology, nor that it must be considered invention, nor that it has industrial application. Signing states must define this, and no motive exists to to make everything patentable.
In any case, if an international agreement obligated Europe to do things contrary to public interest, natural reaction would be to use the weight of the European Union to modify the agreement (or get out of it).
False. This presupposes that having software patents is a competitive advantage, but in reality they are a cost and a distraction. Europeans want to innovate, no pleitejar. Europeans should allow Americans to entertain themselves with lawsuits if that makes them happy (but it does not, and one can hope that one day they change their system, as such there is no need to copy them). This myth also presupposes that patents discriminate by nacionality, and that is not so. From the Paris convention at the end of the 19th century, foreign citizens should be treated like those of the country, with respect to obtaining patents. As patents are granted to specífic states, European businesses can patent and do patent software in the USA if they are thinking about selling it there and they believe it useful. In Europe, neither Europeans nor North Americans should be able to patent. This is not discriminatory: each market has its rules, but all participants play with the same rules. In fact, the absence of software patents would be favorable to Europe, because we would only have to worry about patents when selling in the USA. Smaller businesses can grow in an environment more favorable to Europe and, they are ready, to have a presence in the USA, to think about patenting. Besides, the majority of software patents already conceded to Europe pertain to US businesses or Japan [76], in a way that European developers would be disadvantaged if they legalized them.
The directive would legalize the 30,000 software patents that the European Patent Office has granted during this time, and would encourage it to grant more. This would have grave consequences:
Innovation and competition in computer science would deteriorate greatly. Once a monopolist obtains a patent portfolio it has very few incentives to innovar more, and can raise prices arbitrarily. Those harmed are the users, which in the case of software, is practically all of society, businesses, organitzacions and individuals.
Personal freedoms would be damaged by the control with patents on computer science means of expression, and for the difficulty of developing creative activities in the computer environment.
The standards that assure compatibility across products would be monopolized.
The availability of information on the internet would be subject to tolls as high for producers as for consumers (like for exemple 0,02 EUR / hour for the MPEG 4 digital vídeo format [2]).
All these difficulties would provoke a slowdown or abandonment of software development, an increase of control of the internet by multinationals and would condemn the public to be mere consumers of information without contributing anything to the internet for fear of infringing patents (as has happened with the GIF image format [23]).
The 30,000 illegal software patents that industry can currently ignore would suddenly become valid and any business or institution would infringe many with products that it had developed or acquired without worrying about patents previously.
It would weaken author rights in computer science, that are the base of all European software development, because independent creations protected by author rights would be attackable by patents.
The European software market would be left in the hands of large businesses from the USA or Japan, that are more aggressive in requesting patents and hold the majority of software patents granted by the European Patent Office. The directive would be protectionist, but would protect foreign capital.
There would be movement of capital in the computer sector to patent intermediaries and the European Patent Office, and movement of capital of all economic sectors to these few large businesses in the USA and Japan.
Free software would disappear or would be marginalized, and this would imply a major setback in the history of computer science and a reduction of freedoms and options for software users, and even a cultural reversal.
The EuropeanCommission is supported by some large, foreign businesses (normally those that the patent departament lets speak), the European Patent Office and all those intermediaris that could profit with this change, but practically all others oppose it. The following groups have already spoken out in opposition:
In favor of software patents 85 responses of 1447 - 6%
Against software patents - 94%
Against, by group:
Individuals - 98,5%
SMEs - 95%
Large businesses - 81%
Associacions - 45%
Users - 99,6%
Students - 99,5%
Academics - 98,0%
Software developers - 95,8%
Intellectual property professionals - 33%
Governments - 22%
CALIU [25] is a non-profit association that has as its objective collaborating in the use and distribution of, and contributions to the GNU/Linux operating system for Catalan-speaking users. The GNU/Linux operating system is free software, and jointly with other free software has enjoyed considerable growth in use in the last few years, extending to servers, personal computers, corporate mainframe computers, PDA's, etc.
Free software [64] is distributed protected by copyright and with licenses that grant everyone the use, sutdy, free modification and redistribution, and likewise with source code that free software generates. There are many people that develop, translate and improve free software, for diverse reasons: altruism, as a hobby, research, business...
Users have demonstrated appreciation for the freedoms and the quality of free software, and it is used for more and more things in more places. This growth appears to worry Microsoft, because it could harm its monopoly position and Microsoft has been unable to avoid it.
European governments have recognized some of the virtues of free software (with greater or less degree of understanding and committment) and have taken measures to use it in goverment agencies, and to foment its private use. One report [55] from Unisys for the European "Interchange of Data between Administrations" program repeats the recommendation to use free software in governments that already proposed [56] a temporary committee of the European Parliament on the Echelon information interception program. Governments around Europe also support el free software: United Kingdom [57], Germany [58], France [59], Spain [60], Extremadura [61], Finland [62], Catalonia [63]...
But European politics does not appear to have sought consistency when they propose free software on one hand and software patents on the other. To make progress, free software needs a just legal structure. Software patents are harmful for all kinds of software, but in the specific case of free software, patents could make it disappear or marginalize it for various reasons:
As one of the objectives of free software is facilitating its study, any large business that wants to eliminate competition that creates free software, can analyze it much more easily if the program uses no patentted than if the program were restricted (not free), as such is more vulnerable to lawsuits.
The software that is distributed with a license that does not permit use without paying the distributor can dedicate part of its price to pay for any licenses for patents needed (even though this possibly costs so much the company cannot continue). The developer of free software has chosen to allow free distribution and use of his software, and as such cannot even be sure how many copies of the program there are. Only at great difficulty could he pay for an unlimited license.
One of the motives for the superior quality that free software often exibhits is that people all over the world have contributed via the internet. A typical free program is the sum of contributions of many people and the origins of its source code may lie in many other free programs. Restricted programs often do not have this possibility, because their licenses do not permit contributing to or borrowing from their source code (that often is not even available) for other projects, and very often free software cannot be combined with non-free software because the license prohibits it. When a program is developed in such a descentralized manner, as is the norm with free software, the responsability to know if a contribution infringes a patent presents some legal risks that are unassumable.
This worldwide heritage of free software, including GNU/Linux [54], would lose if the proposed directive of the Commission were approved, and CALIU would end (or have legal problems). This is what has lead us to demand an action that not only avoids our disappearance and that of the software that we defend, but that avoids serious harm to computer science in general.
Software patents awaken the opposition of many people, because are very harmful, but the European Commission and the European Patent Office seems to be more sensitive to the minority of bureaucrats and oligopolists that benefit. The commission ignores the opinions received and presents the matter in a way that is hardly precise. If the commission succeeds in getting the proposal approved, the consequences could be terrible.
The position of the Commission is so biased that it has named [77] as a representative to the Council of Ministers workgroup the selfsame European Patent Office, that does not form part of the EU and that has interests in covering for its irregular behavior and assuring itself of greater fees, for the more patents the better. Altres països are igualment parcials en enviar a people of les respectives oficines of patents estatals a les negotiations. I la presidència danesa del Consell sembla voler enllestir les discussions tan aviat as el 14 o 15 of novembre of 2002, to pressionar el European Parliament.
With respect to the European Parliament, the working documents [65][66] of the relevant committee are very favorable to software patents (but the work in progress promises to be open to opinions and that it has not made a decision yet). And the committee has presented a critical study, but that overlooks the principal problems [67]. The 7th of November, 2002 a group of experts appeared before the judicial committee [79], with different points of view, and few agreed with the directive as it was proposaded. For many, the proposal of the commission did not define clear limits on patentability. Now the problem is to find consensus among the critics to amend the directive to the satisfaction of everyone.
If a directive on software patentability must be published, it would have to be to request member states eliminate the clause "as such" from article 52 of the European patent convention to avoid futurs interpretacions mal intencionades. Més important than this, though, is to resolve that la interpretation correcta of the convention is that patents only s'han d'atorgar for invents that aportin nous coneixements sobre el funcionament of natura, and no for creations logical o informacionals like computer programs, mathematical formulae, business plans, that use mechanisms already known, like a computer.
Justament this is el that proposa a text alternative a the directive [68] that podria ser utilitzat as esmena a la totality and that valdria la pena that consideressin el European Parliament and el Consell. I more enllà of the directive, hem proposat mesures [69] to corregir l'actual desgavell, that already han estat recolzades for polítics, businesspeople, juristes, acadèmics and associacions.
Per this, Caliu demana that els polítics, els parties and les institucions catalanes es pronunciïn clarament en against of software patents and demanin mesures of control efectives to avoid that the European Patent Office continue inventing its own rules independent of the law at the cost of prosperity in Europe. En this sense, it also is important that the modality of patent anomenada Community Patent [9] not be managed for an institution so outside democratic control and unfaithful to the law like the European Patent Office[4].
We must return to the traditional line that the German federal tribunal decision illustrates [13].
And not much time remains to do it. For this reason, we ask that you:
To contact us:
CALIU
main office:
Passeig de Fabra and Puig, 376, 2-2
08031 Barcelona
Registered in the Official Registry of Associations of the Generalitat of Catalunya, as number 25400.
People to contact:
Xavi Drudis Ferran <xdrudis@tinet.org>
Francesc Genové <sly@grn.es>
Eduard Fabra and Bori <edufabra@teleline.es>
Josep Maria Fabrega Sanchez <jah@ant.eupvg.upc.es>
Emili Masnou <emasnou@cruzverde.com> o emasnou@netscape.net
You will find abundant material on software patents at the following web sites:
http://cip.umd.edu/Aigrain.htm
http://swpat.ffii.org
http://www.aful.org
http://prionnova.hispalinux.es
http://www.freepatents.org
http://www.pro-innovation.org
http://petition.eurolinux.org
http://www.researchoninnovation.org
http://lenz.als.aoyama.ac.jp/Stellungnahmen/Sink_the_software_patent_propasal.htm
and at the reference links at the bottom of this page.
[1] Directive Proposal
German http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92de.pdf
English http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92en.pdf
French http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92fr.pdf
Spanish http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92es.pdf
Danish http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92da.pdf Italian http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92it.pdf
Dutch http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92nl.pdf
Portugese http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92pt.pdf
Finnish http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92fi.pdf Swedish http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92sv.pdf Greek http://www.europa.eu.int/comm/internal_market/en/indprop/com02-92el.pdf
[2] Tolls on the information superhighway (to view MPEG 4 video)
English http://petition.eurolinux.org/pr/pr18.html
[3] European Patent Convention
English http://www.european-patent-office.org/legal/epc/
German http://www.european-patent-office.org/legal/epc/index_d.html
French http://www.european-patent-office.org/legal/epc/index_f.html
[4] European Patent Office (EPO)
FFII page about the EPO:
English http://swpat.ffii.org/players/epo/index.en.html German http://swpat.ffii.org/players/epo/index.de.html
Can Ribot decries the pork:
Catalan http://patents.caliu.info/porc.html
Official EPO page:
English http://www.european-patent-office.org/
French http://www.european-patent-office.org/index_f.htm
German http://www.european-patent-office.org/index_d.htm
[5] Study ordered by the Comission
English http://europa.eu.int/comm/internal_market/en/indprop/studyintro.htm
[6] One of the economic studies that advises against software patents
James Bessen & Eric Maskin
Sequential Innovation, Patents and Imitation,
Working Paper, Department of economics MIT, Cambridge, Massachusets.
English http://www.researchoninnovation.org/patent.pdf
[7] Summary and independent study of the responses to the Commission's survey
English http://swpat.ffii.org/vreji/papri/eukonsult00/
[8] Official report of the Commission
English http://www.europa.eu.int/comm/internal_market/en/indprop/softpatanalyse.htm
French http://www.europa.eu.int/comm/internal_market/en/indprop/softpatanalyse.htm
German http://www.europa.eu.int/comm/internal_market/de/indprop/softpatanalyse.htm
[9] Position of Eurolinux on community patents
English http://www.eurolinux.org/news/cpat01B/indexen.html
Spanish http://www.eurolinux.org/news/cpat01B/indexes.html
[10] Warning from Eurolinux on the BSA directive
English http://www.eurolinux.org/news/warn01C/indexen.html
Spanish http://www.eurolinux.org/news/warn01C/indexes.html
German http://www.eurolinux.org/news/warn01C/indexde.html
French http://www.eurolinux.org/news/warn01C/indexfr.html
Italian http://www.eurolinux.org/news/warn01C/indexit.html
[11] Commentary from Eurolinux on the proposed directive
English http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/indexen.html
[12] European software patents horror gallery
English http://swpat.ffii.org/vreji/pikta/index.en.html
German http://swpat.ffii.org/vreji/pikta/index.de.html
French http://swpat.ffii.org/vreji/pikta/index.fr.html
[13] Judicial verdict that delimits what should be patentable and
the meaning of "computer software as such"
BGH 1976-06-22: Dispositionsprogramm
German http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexde.html
English http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexen.html
French http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexfr.html
[14] Press release from the Directorate General for the Internal Market
English http://www.europa.eu.int/comm/internal_market/en/indprop/02-277.htm
German http://www.europa.eu.int/comm/internal_market/de/indprop/02-277.htm
French http://www.europa.eu.int/comm/internal_market/fr/indprop/02-277.htm
[15] Question and answer list from the Commission
English http://www.europa.eu.int/comm/internal_market/en/indprop/02-32.htm
German http://www.europa.eu.int/comm/internal_market/de/indprop/02-32.htm
French http://www.europa.eu.int/comm/internal_market/fr/indprop/02-32.htm
[16] Moral corruption of the patent system
English http://swpat.ffii.org/stidi/tisna/indexen.html
[17] Resolution from the Dutch Parliament requesting that patentability
not be expanded until the problems with the current system are resolved.
English http://www.linuxjournal.com/article.php?sid=5085
[18] Studies on innovation and software patents.
English http://swpat.ffii.org/vreji/minra/siskuen.html
French http://swpat.ffii.org/vreji/minra/siskuen.html
German http://swpat.ffii.org/vreji/minra/siskude.html
[19] Patent examiners complain that they cannot execute their tasks well
Union Syndicale, Bulletin Agora, Juin 2000, pages 12-13 (no longer on the web)
French http://home.tvd.be/rc20042/public/
Note from the European Patent Office workers' union, which was on their web site
in May of 2002 and no longer appears there.
English http://patents.caliu.info/usoeb.html
[20] A student explains how his colleagues "reinvented" the patented XOR drawing method.
English http://petition.eurolinux.org/consultation/sqlGetMail/170/viewMail?NO_COOKIE=true
[21] BT patents web links
Catalan http://nosaltres.vilaweb.com/vilaweb//cerca_u.noticia?p_idint=100000465074
[22] Bibliography against software patents.
English http://swpat.ffii.org/vreji/prina/index.en.html http://swpat.ffii.org/vreji/minra/sisku.en.html http://swpat.ffii.org/vreji/papri/index.en.html German http://swpat.ffii.org/vreji/prina/index.de.html http://swpat.ffii.org/vreji/minra/sisku.de.html http://swpat.ffii.org/vreji/papri/index.de.html French http://swpat.ffii.org/vreji/prina/index.fr.html http://swpat.ffii.org/vreji/minra/sisku.fr.html http://swpat.ffii.org/vreji/papri/index.fr.html
[23] Problems with the GIF image format
English http://lpf.ai.mit.edu/Patents/Gif/lpf_position.html
[24] Position of the Regions Committee of the European Union
English http://swpat.ffii.org/vreji/cusku/indexen.html#cor
French http://swpat.ffii.org/vreji/cusku/indexfr.html#cor
German http://swpat.ffii.org/vreji/cusku/indexde.html#cor
[25] CALIU
Catalan http://www.caliu.info
[26] Opinion of Philippe Aigrain,
Head of Sector "Software Technologies"
in the unit "Technologies and Engineering for Software, Systems and Services"
of the European Commission Information Society Technologies R&D Programme,
English http://cip.umd.edu/Aigrain.htm
[27] Trivial software patents can not be avoided
English http://swpat.ffii.org/stidi/frili/indexen.html [28] New EPO rules
English http://www.european-patent-office.org/legal/gui_lines/e/c_iv_2.htm
[29] The technicality criteria
English http://swpat.ffii.org/analysis/invention/index.en.html
[30] Collection of redundant measures to the proposed directive to make software patentable
Catalan http://patents.caliu.info/dgiv.ca.html#trucs
English http://patents.caliu.info/dgiv.html#trucs [31] Q&A about the European Commission's Q&A
English http://swpat.ffii.org/papers/eubsa-swpat0202/faq/index.en.html [32] The ASF video format is covered by patent
English http://swpat.ffii.org/patents/effects/asf/index.en.html
[33] The MP3 audio format is covered by patents
English http://swpat.ffii.org/patents/effects/mpeg/index.en.html [34] Th JPEG image format is covered by patents
Catalan http://patents.caliu.info/nota180702.html
[35] The GIF image format is covered by patents
English http://swpat.ffii.org/pikta/xrani/gif-lzw/index.ca.html [36] Censorship by patents:
A pro-patent critic charged with violating a software patent
English http://swpat.ffii.org/patents/effects/rozmanith/index.en.html
[37] The IEEE patent policy
English http://www.ftc.gov/os/comments/intelpropertycomments/ieee.pdf
[38] The IETF patent policy
English http://www.ietf.org/html.charters/ipr-charter.html [39] Consensus on assertions with Eurolinux.
Multilingual http://swpat.ffii.org/papers/eubsa-swpat0202/demands [40] France rejects the directive
English http://swpat.ffii.org/papers/eubsa-swpat0202/france020301/france020301.en.html
[41] News of the opposition by all French parties to software patents
French http://www.liberation.fr/quotidien/semaine/020312-040031013ECON.html
[42] The German antitrust commission is against the directive
German http://www.monopolkommission.de
[43] SPECIS union against software patents
French http://linuxfr.org/2001/12/16/6375,0,1,0,0.html
[44] Association of Danish IT professionals PROSA.DK
Danish and English http://www.prosa.dk/
[45] Internet Society France against software patents
French http://swpat.ffii.org/papiers/eukonsult00/isf/index.fr.html
[46] Internet Society Luxembourg against software patents
French http://swpat.ffii.org/papers/eukonsult00/walle/index.fr.html
[47] BBC against software patents
English http://swpat.ffii.org/papiers/eukonsult00/bbc/index.en.html
[48] Dutch Labor party opposes software patentability.
English http://swpat.ffii.org/papers/eubsa-swpat0202/pvda020220/index.en.html
[49] The Opera company is against software patents
English http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1415
[50] The company ILOG is against the patents
English http://swpat.ffii.org/archive/quotes/index.en.html#haren01
[51] Campaign against software patents by the ESR Pollmeir company
German and English http://www.esr-pollmeier.de/swpat/
[52] FENIT professional association in Holland against software patents
English http://www.vosn.nl/patenten/kriteria_fenit_vosn_english/
[53] Group proinnova of ATI.
Spanish http://www.ati.es/noticias/doc/20020711101106.html
[54] Linus Torvalds does not want even to know what legals risks Linux faces due to software patents
English http://lwn.net/Articles/7001/
[55] Report by Unisys on the use of free software in public administration
English http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/02/1010|0|RAPID&lg=EN
The document titled "Part 3: The Open Source Market Structure" talks about software patents, pp 54-55
English http://europa.eu.int/ISPO/ida/jsps/index.jsp?fuseAction=showDocument&parent=news&documentID=550
[56] The EU proposes using free software to improve security
p. 56 of reference 55 of this document
Draft report of the European Parliament Temporary Committee on the Echelon Interception System
[57] Free software in the administration of the United Kingdom
English http://zdnet.com.com/2100-1104-945784.html
[58] Free software in the German administration
English http://www.gnupg.org/aegypten/
English http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2869075,00.html
English http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,71659,00.html
English http://www.nwfusion.com/newsletters/linux/2002/01383301.html
English http://www.pcmag.com/article2/0,4149,16097,00.asp
[59] Free software in France
See referencia 55, Document "Part 2: Use of Open SOurce in Europe", pp. 28-36
[60] Free software in the Spanish administration
Rhodas Project of the Public Administration Ministry
that also recommends avoiding software patents
Spanish http://lucas.hispalinux.es/Articulos/0000otras/doc-proyecto-rhodas/doc-proyecto-rhodas/
(also p. 55 of reference 55, document "Part 2: Use of Open SOurce in Europe",
[61] Debian in the Extremadura Government (Junta)
Spanish http://www.linex.org/
[62] Free Software in the Finnish administration
English http://linuxtoday.com/news_story.php3?ltsn=2002-06-17-011-26-NW-DP-PB&tbovrmode=1#talkback_area
[63] Free Software in the Catalan Public Administration
p. 37 of the Official Bulletin of the Parliament of Catalunya, n. 318
Catalan http://www.parlament-cat.es/pdf/06b318.pdf
[64] About free software
Multilingual http://www.fsf.org/
[65] Work in progress at the European Parliament Committee on Legal Affairs and Internal
Markets about the facts
Catalan http://patents.caliu.info/mcCarthy-facts.ca.html
English http://patents.caliu.info/mcCarthy-fact.html
[66] Work in progress at the European Parliament Committee on Legal Affairs and Internal
Markets about their questions
Catalan http://patents.caliu.info/mcCarthy-opinion.ca.html English http://patents.caliu.info/mcCarthy-opinion.html
[67] Report by Bakels and Hugenholtz on software patents,
presented by the legal commission of the European parlament
Catalan http://patents.caliu.info/dgiv.ca.html
English http://patents.caliu.info/dgiv.html
[68] Text alternative the directive
English, French and German (HTML and PDF) http://swpat.ffii.org/papers/eubsa-swpat0202/prop/
In PDF format and an easier to read formating (and with other documents inclosos)
http://swpat.ffii.org/events/2002/europarl11/cfa-en.pdf [69] Demands accorded with Eurolinux
Multilingüe http://swpat.ffii.org/papers/eubsa-swpat0202/demands/
[70] Patenting Software Under the European Patent Convention
Keith Beresford
Sweet & Maxwell; ISBN: 0752006339
English http://www.smlawpub.co.uk/products/cat/mydetails.cfm?title=5414&detail=5414
[71] Average price of a European patent
English http://www.european-patent-office.org/epo/new/kosten_e.pdf
[72] EBay says they face possible massive losses and closing US operations because of
the parasitic the company that just sued eBay
English http://news.com.com/2100-1017-956638.html
[73] Statistics from the Telecomunications and Information Society Secretary
Catalan http://www.gencat.es/csi/pdf/cat/estadistiques/Oferta_TIC_2001/2_Situacio_actual.pdf
[74] Converting Capital Into Software That Works
Joel Spolsky
English http://www.joelonsoftware.com/articles/fog0000000074.html
[75] Summary of the counterargument of the effects TRIPS accord
English http://swpat.ffii.org/analysis/trips/index.en.html
[76] statistical estimates of the number of software patents
English http://swpat.ffii.org/patents/swpatperled/index.en.html
[77] The Commission European names the European Patent Office Working Group
as representative
English http://swpat.ffii.org/papers/eubsa-swpat0202/epo020621/index.en.html [78] Opinion CES1031-2002 of the EU Social and Economic Committee
against the software patentability directive
http://www.toad.esc.eu.int/scriptsces/viewdoc.asp?doc=ces\int\int145\ces1031-2002_ac.doc&lang=EN [79] Web pages about the audience of the Legal Affairs and Internal Market
of the European Parliament on the software patentability directive
Oficial page
http://www.europarl.eu.int/hearings/20021107/juri/default_en.htm Report by a Caliu member who attended http://patents.caliu.info/audiencia.html Report by Hartmut Pilch, who testified http://swpat.ffii.org/events/2002/europarl11