To An Tánaiste, Mary Harney,
To whom it may concern,

I am writing to you regarding EU directive COD/2002/0047 "on the patentability of computer-implemented inventions", which will be discussed by the Competitiveness Council on the 17th and 18th of this month. Members of Irish Free Software Organisation (IFSO) have been involved in this directive since June of 2003 and we would like to offer our assistance.

The Right to Write Software

For software to be competitive, it must allow it's users to share data with other people. To do this, is has to be able to read and write the files that software users have created with the market leaders' software. If companies are allowed to patent techniques required for writing certain file formats, compatibility could be made illegal. By rendering alternative software packages useless, competition would become a puppet show, and a lot of innovative software would go unused.

In addition to data compatibility, software users expect a certain level of functionality. If a new piece of software is to enter the market, it must do the work of the current market leader, plus something new. This incremental or cumulative development style is how the software industry has progressed, but if software developers are prohibited from implementing widely used features, new products will cease to be competitive.

Software already has "ownership rights" in the form of copyright. Use of copyright is instant, free, and doesn't interfere with other peoples work. In contrast, patents would leave even independent software development open to patent infringement charges.

An open letter from 14 notable European economists said:

``Unlike most complex technologies, the opportunity to develop software is open to small companies, and even to individuals. Software patents damage innovation by raising costs and uncertainties in assembling the many components needed for complex computer programs and constraining the speed and effectiveness of innovation.''

The full letter is available at: http://www.researchineurope.org/policy/patentdirltr.htm

Free Software, also known as "Libre Software", or "Open Source"

Free Software is software that comes with royalty-free permission to run, study, modify, copy, and redistribute the software.

Since the mid-nineties, some businesses have been building a new business model based on the fact that it costs nothing to give people these rights, and there's no barrier to entry into the market. These businesses make money from providing software development services such as writing extensions, customisation, system setup, technical support, etc. and each new company contributes to the pool of Free Software. The European Commissions' Information Society Initiative recently released a report on "Free / Open Source Software F/OSS", which says:

``On the provider side, F/OSS creates new opportunities for software and service providers, which may be a unique opportunity for the European software industry - somehow this may be a proverbial "second and last chance".''

(http://europa.eu.int/information_society/activities/opensource/text_en.htm)

Software patents are particularly harmful to Free Software, more so than unfree/proprietary software because Free Software cannot require per-copy royalties, so Free Software projects find it virtually impossible to get permission to use patented technologies.

The US Federal Trade Commission

Finally, we'd like to draw your attention to the October 2003 report by the US Federal Trade Commission.

The report is 315 pages and covers the US patent system as a whole, but I have excerpted and attached the 13-page section specific to the patenting of software. In the printed copy, this section begins on page "44" of chapter 3 (each chapter staring at 1), or page 153 in the complete digital copy which can be found at http://www.ftc.gov/os/2003/10/innovationrpt.pdf

From the conclusion:

``Many panelists and participants expressed the view that software and Internet patents are impeding innovation. They stated that such patents are impairing follow-on incentives, increasing entry barriers, creating uncertainty that harms incentives to invest in innovation, and producing patent thickets.''

The conclusion listed no redeeming qualities for software patents.

Software patents were introduced into the US in 1986 by a court decision rather than any democratic legislative procedure, and because the US was the first economy to permit software patents, their decision was made without the benefit of being able to study the effects of software patents in other countries. The EU has the advantage of being able to learn from their mistakes.

The US held the dominant position in the software industry long before 1986, so the existence of software patents in the US should not be construed to imply that they benefit the industry. In contrast, we believe that if software patentability spreads into Europe, it would stagnate the industry in a manner which would benefit only the very large software companies - none of which are European.

Last September, we were pleased that Ireland's MEPs, along with the majority of the European Parliament, voted to adopt a set of amendments which would clarify that software innovations are excluded from patentability. For the reasons given above, we believe it is clear that the introduction of legal software patents would be disastrous for Europe's software developers and software users, and we ask that you support the decision of the Irish MEPs and the parliament.

Please contact us if you would like any further input from IFSO, we would be glad to oblige.

Ciarán O'Riordan
Chairman, Irish Free Software Organisation
http://ifso.ie