Tim Jackson

On 2 June 2003, I sent the following e-mail to all my MEP’s in the Eastern Region of the UK (that is, Robert Sturdy (Conservative), Eryl McNally (Labour), Christopher Beazley (Conservative), Bashir Khanbhai (Conservative), Richard Howitt (Labour), Andrew Duff (LibDem), Geoffrey Van Orden (Conservative) and Jeffrey Titford (UKIP)).

From: Tim Jackson <tim@timj.co.uk>
Subject: Software patenting: request for action

Dear <name>,

As a constituent living in the Eastern region, I would like to draw to
your attention a matter of great concern to me, which will potentially
have a major effect on both the civil freedoms and economic development of
individuals, organisations and businesses in our area (and indeed the UK
and Europe at large). Various votes are underway on this matter, and I
therefore draw your attention to this with some urgency.

My concern is in the area of patentability of software, and specifically
the proposed Directive on the Patentability of Software.  To briefly
outline my background: I have been involved in software development for
most of my life, on both on a personal and professional level. I currently
work for a small business in Essex, for which software development
comprises a significant part of its business.

As you are probably aware, Article 52(2) of the European Patent Convention
currently explicitly excludes computer programs from patentability, and
after some research I (and many others) have become greatly concerned that
in fact, contrary to this prohibition and through the use of semantic and
logical acrobatics, there have been patents on software numbering in the
tens of thousands granted in Europe over a number of years. Indeed, the
proposed Directive acknowledges the lack of consistency in this area. Most
worrying, however, is my understanding that the proposed solution will
summarily, legitimise these patents and open the floodgates for future
claims by explicitly allowing software patents.

I wholeheartedly implore and request you to take a strong stand against
any moves in the European Parliament to legalise software patents.

I will outline some of my reasons below, though I would be delighted to
engage in a dialogue discussing these issues more deeply should you feel
it is appropriate.  In the meantime, I will also refer to some resources
that I have found to be of use whilst researching this issue. Since I am
not aware of whether you have any previous awareness or interests in this
area, I will attempt to keep my explanations non-technical; I sincerely
hope that you will not interpret it to be in any way patronising should
you have technical knowledge of these matters already; it is most
certainly not intended that way.

To anyone involved in software development, but particularly those who are
individuals or work for small organisations, software patents represent a
great threat, and this is immediately apparent to anyone with practical
development experience.  Software, even complex programs many millions of
lines long, is based fundamentally on the interlinking of many trivially
simple ideas or concepts. In this way, in fact, it mirrors everyday life:
physical activities and work we all perform daily are simply a combination
of a number of small steps arranged in a particular way.  

Thankfully, we already have a legal mechanism for protecting the
creativity and skill invested in the development of software and the
combining of these ideas in a particular arrangement: copyright. Indeed,
recent developments (such as the European Copyright Directive) have
already strengthened copyright laws in favour of creators. However, some
people (especially patent lawyers) believe it is possible (and would like)
to arbitrarily divide the ideas and logic emobidied within software into
many "inventions".  This presents a great problem: if a patent purports to
describe in detail a very specific combination of ideas, then in reality
it is mimicking copyright; there can be no more succinct description of a
particular combination of ideas in software than the program itself in
both source and object form, and this already enjoys strong protection
under copyright laws. However, if a patent generalises a particular
program, then it is expressing mere logic, and most likely threatens to
encompass broad swathes of software developments and perhaps open the door
to the genuine horror of even more general "business method patents"
which, as only a superficial glance at the United States patent repository
will show, is a veritable nightmare.

To analogise for a second: programs and software ideas are the tools of
the programmer. We would not, I hope, consider for a minute creating laws
telling a builder "you may use not your hammer, saw and screwdriver in a
particular way" but this is the threat that programmers are placed under. 
Not only is there the threat that the tools of our trade are under the
threat of being arbitrarily restricted, but even allowing any possibility
of software patenting places a legal bludgeoning tool in the hands of
those with the resources to use it: that is, that large companies with
libraries of patents will be able to embroil smaller entities and
individuals in legal minefields which they do not have the resources to
fight, irrelevant of the merits of the case.

Sadly, discussions in this area have very often degenerated into
meaningless discussions with those who do not really understand the issues
trading in long, asbtract and even "doomsday"-alike diatribes on how the
lack of software patents is hampering innovation, or how Europe must
harmonise with the United States in allowing patents on virtually any
combination of logical actions.  Yet in actual fact, Europe is ahead of
the world in having insightful jurisprudence dating back to the 1970s. May
I refer you to an excellent article "Patent Jurisprudence on a Slippery
Slope - The Price for Dismantling the Concept of Technical Invention"
[http://swpat.ffii.org/analysis/invention/index.en.html]. Furthermore,
there is a deep feeling amongst many stakeholders in this discussion that
the patent system, and in particular discussions on software patenting,
are being driven by those with deep vested interests in expanding
patentability (that is, patent lawyers and national patent offices), and
that the voices of smaller businesses along with programmers and
engineers, the people with the real technical knowledge and deep
understanding of the pragmatic implications of these issues, are not being
heard.

Furthermore, it is clear for all to see that the software industry in
Europe is thriving without software patents. It is only necessary to look
at the astonishing advances in global networking over the past decade
(much of which has been driven by free software) to see that innovation is
ongoing in the software arena in the absence of patents. Patents will not,
as supporters claim, stimulate innovation but will instead stifle it by
creating a heavy atmosphere and burden of litigation. 


Therefore, software patents not only represent a great threat to business
(especially smaller enterprises) but also curtail individual freedoms by
taking away. This is also of great concern to the many millions of people
who develop and use free (or "open source") software, the growth of which
could be stifled by patents.


I support the Call For Action on these matters instigated by the 
Foundation for a Free Information Infrastructure (FFFI), which can be
found at:

http://swpat.ffii.org/papers/eubsa-swpat0202/demands/index.en.html

I would request you to publically declare your support for these aims too,
and take an active role in opposing software patents at a European level.


To summarise, may I request that you:

- oppose any moves to expand the patentability of software, being  
  particularly cautious of ambiguous wording and verbal "fluff" on these 
  issues by many of those with vested interests.

- proactively encourage the enforcement and authority of Article 52(2) of 
  the European Patent Convention

- Support the Foundation for a Free Information Infrastructure's proposed
  amendments to the Directive. These sensible and realistic amendments,
  written by people with the technical knowledge to understand the issues 
  at stake, flawlessly summarise my feelings on this issue.  The proposed
  amendments can be found at:
  http://swpat.ffii.org/papers/eubsa-swpat0202/prop/ .

- be aware of the considerable amount of confusing and misleading  
  proposals by software patent advocates, including proposals of 
  "restrictions" which they claim will prevent problems but in reality are
  meaningless or easily circumvented by creative patent filings. I endorse
  the concept that any such proposals are subjected to a test against real
  libraries of software patents, to ascertain whether the "restrictions"
  really prevent software patenting.


Your attention to these matters is greatly appreciated.


Yours sincerely,




Tim Jackson