letter

Dear Sir,ha

We are very worried by the EU plans to push changes in the Munchen convention in order to legalize patents on software and, eventually, business methods. We think that such a decision would create a lot of juridical uncertainty, play havoc with the whole european independent software industry, make competition much fiercer for independent software editors and, in the mid term, slow down innovation and investment in the software industry.

We understand that software patents would create good sources of revenue for lawyers and patent offices. We also understand that big US patent owners, such as IBM, Bell Labs, Microsoft, etc. are eager to use their portfolio in Europe and that the Munchen convention makes it quite difficult right now. We also understand that some EU countries are not enforcing the Munchen convention as strictly as they should which creates some confusion.

But that does not prove that legalizing software patents is the right way to go in terms of economy, employment, innovation and competition. We can assure you that for us, software patents mean more risks, less choice and more costs without even giving us more protection. We think that, at a time when software patents are getting more and more criticized in the US, EU governments should take time and consider the following arguments. Read for example in the May issue of the Red Herring Magazine (the reference in the US for IT investors) the article called "I will sue your ass".

Argument 1 : any software editor or developer has 99.9% chance to infringe someone else's patent - who is going to take the risk to be sued ?

Patents in the US are issued for very elementary software processes such as "use of the exclusive function to change black into white". 95% patents issued in the US are very elementary applications of mathematical functions or features required by users. Because any software uses many thousands of such elementary processes, and because companies like IBM, Bell Labs, etc. own patents on tens of thousands on such elementary processes, any company which publishes software takes the risk to be sued.

If the two companies own patents, the lawsuit may be solved through patent cross licensing. If not, the small company, which usually does not have much money to patent some elementary software processes, will be forced to pay or to remove its software from the market. The same thing will happen if the patent owner does not publish any software. Such companies already exist in the US and live from grabbing all the money they can from software editors while taking no risks themselves (ex. http://www.intermind.com)

As a consequence, editing software, or even providing services of software development, becomes very risky. This could lead to small companies closing, investors going away from the software industry. Software patents actually promote concentrations and monopolies against small innovative companies. Software patents also promote people who own patents against people who make software. Companies such as Microsoft, which could grow 15 years ago because there were nearly no software patents to stop them, are already planning to use them to eliminate their competitors (look for example at http://www.opensource.org/halloween2.html).

Consequence 1 : software patents help big companies to eliminate small competitors

Consequence 2 : software patents promote people who own patents against people who make software

Argument 2 : good software development costs much more than a patentable software idea

Most software patents are very straightforward ideas which expert lawyers can disguise as technical processes. Read for example patent US 5,842,221 about a "Dynamic frequently asked questions (FAQ) system". OK, this one is really stupid and one might think that the European Patent Office will never allow those things. So, have a look by yourself at something even more trivial : the use of the exclusive OR function for bitmap inversion (US4197590) which was registered in at least in 3 european countries (FR2338531, DE2701891 , DE2760260 , DE2760261 , GB15419) by playing around with the law and saying that "the xor function is used within an invention made of a display device". Of course, this patent will be very hard to enforce currently in Europe on pure software because the patent owner risks cancellation on the basis that "software patents are illegal". But if the Munchen convention is revised, we'll probably see more lawsuits on the xor function or other idiotic patents that no patent office will ever be able to automatically reject.

In terms of economy, the problem with patenting technical instanciations of software ideas is that software ideas cost nearly nothing to find; especially when they come, as it is the case for user interface, from user suggestions or requests. However, developing software ideas to make usable software is very expensive. The law should normally protect the one who is investing a lot of time and money. That's exactly the case with patents in the industry which were designed to protect complex industrial processes rather than business ideas. But in the case of software, patents protect the guy who is not taking the real risks.

Consequence 3 : software patents promote the people who take the least risks

Argument 3 : prior art searches are nearly impossible

The patent offices, even with great efforts and courage, will probably never be able to check prior art on software patents, mainly because most software ideas and processes are published without being patented, but also because it is very hard to classify software processes. Many patents based on the control theory can be reformulated in the neuro-fuzzy-logic theory. Who will ever check that ? As a result patent owners are not very well protected and people who are being sued never know if the claim makes sense or not.

Consequence 4 : software patents do not protect inventors

Argument 4 : software patents are incompatible with advanced programming approaches

New programming approaches such as meta-programming, adaptive systems, artificial life, etc. allow a program to generate itself or to generate another program based on external conditions and specifications given by the end user. Other approaches to advanced programming include very abstract frameworks which allow to specify a program with very descriptive terms. In both cases, it is impossible to know if a program does or does not, will or will not, infringe a patent described in much lower-level terms. Moreover, the theoretical equivalence between programs and mathematical proofs make it very strange to allow patenting the first but not the second.

Consequence 5 : software patents create juridical uncertainty for advanced programming technologies

The global consequence is that software patents create incredible amounts of juridical uncertainty in the software industry which is never good for business. Software patents allow some people or companies to deploy "juridical terrorism" tactics instead of protecting true innovators. Many innovative european products, such as the SSH security protocol, the MySQL database, the Qt framework, Linux, KDE, has been published in Europe first and then became worldwide industrial standards. With software patents, many of those products would never have existed.

EU governments should withhold any decision at the Paris conference on June 24 and 25 in order to take time and study the global economic consequences of software patents in the software industry : innovation, competition, short-term, mid-term and long-term consequences. There is no urge to take a decision now.

Question
<PUT ANY CLEVER QUESTION HERE IN ORDER TO FORCE THEM TO ANSWER>
<MAKE THEM SEND TONS OF PAPER IF POSSIBLE>
<MAKE THEM TAKE POSITION>
<THERE IS A LEGAL OBLIGATION TO ANSWER FOR ADMINISTRATIONS>
<HELP ME TO INCLUDE AS MANY QUESTIONS AS POSSIBLE> Could you please send to me the economic study which servers as basis to decide that software patents should be legalized ?
Could you please tell me the ratio of software publishers in the europe-inside database that you have consulted ?
Could you please tell me the measures that are considered to protect independent software developers ?
Could you please tell me the measures that are considered to protect Linux and Free Software ?
Could you please send to me the proceedings of the London conference ?
Could you please send to me the list of people who were consulted for the EU directive and their profession ?
Do you think that with the Munchen convention, patent US4197590 equivalents will be enforceable in Europe on pure software ?
Do you think that a program which eventually generates another program with some patented process infringes a patents ?
Do you think that software patents should be enforced on service companies who provide custom software development service ? What kind of control do you plan ?

Best regards,