From: Tim Jackson
To: gvanorden [at] europarl.eu.int
Subject: Software patenting
Date: Mon, 18 Aug 2003 20:51:23 +0100
Dear Mr. Van Orden,
Thank you kindly for your letter of 10 July about software patents. With
the plenary vote drawing close, I felt that now would be a good time to
respond briefly to a few points, and introduce one recent, very important
decision at the European Patent Office.
Firstly, I applaud your desire to prevent patenting of generic
software/business method patents and, sensibly, maintain copyright as the
primary (and most appropriate) tool to encourage innovation in this field.
As confirmed by research by Bessen/Maskin at the Massachusetts Institute
of Technology ( http://www.researchoninnovation.org/patent.pdf ), patent
protection in the software industry will "reduce overall innovation and
social welfare".
However, I feel I must draw to your attention the fact that the proposed
Directive, as it stands, fails to provide these limitations which we both
agree are necessary. Unfortunately, the requirement of "a technical
contribution in the inventive step" is a merely illusory limitation which
will place no real limits on patenting. Indeed, the concept that a clear
line can be drawn between "technical innovations" in software and
"non-technical innovations" is one introduced only by patent proponents;
professional software engineers such as myself know that no such
distinction exists in reality and any line which is drawn (if indeed a
line is drawn at all, which appears unlikely) will be arbitrary.
Put simply, it is a practical impossibility to disallow the "generic
patenting" but allow "genuine technical inventions" in software. The two
are one and the same. Sadly, the proponents of the Directive have
successfully managed to muddy the water on this.
On precisely this topic, I have attached for your consideration a recent
press release about the approval by the European Patent Office of an
outrageous pure business method patent by Amazon, the Internet retailer.
This clearly demonstrates the above principle in practice: it is, by any
definition, a broad and generic software patent, yet has passed the EPO's
standard for providing "technical innovation" despite it being obvious to
even a layperson that what is being granted protection is nothing more
than a trivial business process. For the avoidance of doubt, the
currently-proposed Directive would emphatically *not* prevent the granting
of such patents. I can only imagine the outrage if authorities told local
shops in Chelmsford "you can't giftwrap items for customer's friends; only
Big Retailer is allowed to do that, unless you pay Big Retailer lots of
money for the privilege"? Yet the Parliament stands on the brink of
legitimising such extortion in the electronic arena.
I would beg you to consider carefully the important principles at stake
here: the freedom to trade and do business freely, for businesses local,
national and international to be able to offer honest services without
fear of legal reprisals and litigation which could ruin them. With
software and electronic commerce playing an ever-more important role in
society, it is so much more essential that European business can remain
competitive without falling foul of unreasonable restrictions at every
step.
I am pleased that the Directive provides provisions for review, but fear
that "after the fact" reviews applied to poorly-drafted legislation will
fail to prevent immeasurable damage being caused, not least because it is
far easier to refuse business logic patents in the first place than to
revoke them after they have been granted. Meanwhile, innovation will have
been stunted and unnecessary litigation will have chilled the software
market and caused great distress for the professional software engineers
and companies involved.
Furthermore, an unprecedented 140,000 people have actively signed a
petition against allowing software patenting; I would be surprised if the
pro-patent lobby could claim active support of even 1% of that figure.
Such a strength of feeling must surely convey the importance of this
issue, and the Directive as proposed does not address the problem seen by
those 140,000.
Your time in considering this issue is greatly appreciated, and as ever I
would be delighted to discuss any queries or doubts that you may have in
person or by telephone on XXX.
Yours sincerely,
Tim Jackson
[attached: FFII press release about Amazon gift-wrapping patent]