[Translated from the original Finnish document.]


Helsinki 29 July 2003
Open letter
Electronic Frontier Finland – EFFI ry

Distribution: Finnish MEPs

EFFI'S POSITION ON SOFTWARE PATENTS

The European Parliament is processing a proposal for a directive that concerns the patentability of computer software. Electronic Frontier Finland ry (EFFI) hopes that the Finnish MEPs would take an active stand on the directive in order to reach a reasonable compromise that would not threaten the existence of small and medium enterprises while not sacrificing the competitiveness of global European companies such as Nokia. EFFI thinks that the best result can be achieved by formulating the directive in a manner that sets connection to the phenomena of the physical world as a precondition to patentability. This would allow protection of consumer electronics and devices while removing unnecessary legal risks from companies that work solely on the field of software production.

EFFI hopes that the respected recipients would give their full support to the changes the Committee on Culture and Education and the Committee on Industry have suggested to the Commission draft that are not present in the current report of Committee on Justice.

Background

The European Patent Office (EPO) has already given patents to computer implemented inventions - possibly against the European Patent Convention. The National Board of Patents and Registration of Finland (NBPR) decided to begin accepting patents on computer implemented inventions on 14 February 2003 - possibly against the law - while the directive is still being processed in Brussels.

Computer implemented patents are often practically equivalent to software patents

According to the European Patent Convention and the Patent Law a computer program or a mathematical theorem can't be patented "as such". As a clarifying example, it means that the Pythagoras' theorem that can be used to compute the distance between two points can't be patented "as such".

According to the interpretation of EPO and NBPR, however, the practical implementations of a computer program or a mathematical theorem can be patented. In the case of the previous example it would mean that all possible implementations of the Pythagoras' theorem (e.g. computing the distance between two points on a computer screen) would be patentable. In computer science research such fundamental mathematical theorems are still found. Although a computer program or an algorithm can't be patented "as such", all reasonable implementations would be patentable, which leads to the same result if the programs or theorems were directly patentable.

A clever patent lawyer will cover a software patent as a computer implemented innovation, using words such as "process" and "system" to artificially satisfy the requirements of industrial application and technical nature. This is how the law is currently circuimvented.

Software patents are obfuscated

Software patents are written in obfuscated language that computer science professionals find hard to understand. The claims are often ambiguous and far reaching. Working programs are not required as reference implementations. For these reasons the software patents are of no use to programmers. Companies rarely encourage programmers to examine patents, more like the opposite. Examining patents is of very little use to programmers and on the other hand it is also better if the programmers don't have to consciously violate patents.

Patented programs are often obvious to professionals

Even the software patents granted by EPO are often protecting ideas that are obvious to the computer science professionals. The most common patent is a small advancement in a narrow field of specialty that is obvious to the professionals of computer science. The reference [EPO] includes examples of questionable computer implemented patents the EPO has granted.

Software patents are used to stifle competition

Because the software patents granted by the EPO are often simple and obvious to the professionals of the field, a typical piece of software can violate several patents without the knowledge of the programmers writing the software. Patents are therefore used as tools of fear and trade. Companies with a large patent portfolio can prevent a competitor from entering the market by claiming that the product of the competitor is in violation of several patents of the company. In a similar fashion such companies often defend themselves against patent infringment claims by pointing out that the other party is also in violation of their patents.

Software patents favor established and often large corporations that have had resources and time to collect software patents and defend their interests in court in the expense of new innovative companies and open source projects. Some large corporations have even stated that producing software is relatively more expensive to them than it is to others. If this statements holds true, why should the society favor their less efficient way of producing commodities?

It is worth of noticing that the open source software of great commercial importance (e.g. Linux) cannot contain parts that can't be used freely without royalties. As an example, the development of free multimedia applications has been so far succesful only because the development community is international and software patents are not recognized throughout the world - for now.

Allowing software patents will not increase the growth potential of small and medium enterprises like some companies using lots of patents claim, rather, it forces them to participate to arms race where the adversaries are already holding a huge patent portfolio. The open source developer community can't participate in this race at all leaving them to the mercy of mass patenters.

Software patents are a growing problem

Software patents have been a difficult problem in the United States for a long time. According to empirical research patents in the area of software production have nothing to do with innovative activity [INN]. Unlike in a working patent system, patents are not a measure of state of the art in the software industry. The society does not benefit from the publication of the information in the patents because the published "inventions" are often outdated even before the patent protection is granted; also, it is common that they are not technically exploitable (the describing language is obfuscated and there is no reference source code). Patents in the software industry are only pieces in a strategic game. The sheer quantity of patents becomes more important and the actual content loses its significance.

The vast quantity of patent applications makes the safety mechanisms of EPO useless: regardless of the technical excellency of the patent databases, only few can afford to hire enough competent staff to wade through the tens of thousands of annually granted patents and write complaints of those that are believed to be prior art. Unlike developing widely useful programs, that is work nobody is willing to do on voluntary basis.

Innovative activity concerning software products is somewhat different from other technical fields of industry: technical compatibility and open technical standards are in an important position in software products [EGOV]. That is why one commercially strategic patent at the wrong place can halt the technical development of software in a greater scale that would be reasonable for the society.

A typical piece of software is composed of a greater number of "building blocks" than more traditional technical devices for which the patent system was originally designed. Therefore even a small program written by a single individual can violate several patents. Instead of using the obvious, efficient and patented way of solving a problem, the patented building block may have to be replaced with a significantly less efficient alternative (see e.g. [EFFECTS]).

As an example, many purposed multimedia standards include algorithms with hidden patents. Patents are harming the development of programs that support the standards. The corporation possessing a patent may demand royalties from individual developers and users afterwards - it doesn't matter whether the program is distributed for free or for a fee. This scenario has actually been seen in software related patent fights in the United States where a company has uncovered an old patent dating back many years and started charging royalties [GIF, MP3, JPEG]. Developers have not either been aware of the patent or the idea covered by the patent could have been previously used without any royalties.

In the case of computer software the duration of the patent is a very significant factor due to the fast development of the industry. The monopoly can last far longer than the patented technology is useful. The considerably longer period of copyright protection does not cause similar damage because the impact of the copyright is more narrow than that of the patent: copyright will protect only one form of implementation while the exclusive right of a patent covers all implementations of a certain idea.

Copyright provides sufficient protection for computer programs

Although an investment to a computer program may be large, it's composed differently than for many other products. The most expensive part is to test that the program will work reliably in all situations and fix the discovered programming errors related especially to the details of the program code instead of the ideas. Without the right to use the same program code the competitors will have to do this testing by themselves. The copyright protects the program source code and thus the most essential part of the investment.

Software patents have been granted in United States for a long time. However, this can't be used as an excuse to introduce software patents to Europe - which would be reasonable only if software patents were demonstrated to create more benefit than harm. Currently nothing prevents European companies from patenting their programs in the United States should they wish to do so, and in return, the American patents do not give anyone outside EU any advantage in Europe.

EFFI considers the copyright to be a sufficient legal instrument to defend the rights to computer programs.

Afterwords

The final form of the directive is not yet known. At present it is not clear what kind of changes will be suggested before the plenary session. Therefore we are yet unable to give an exact list of changes we recommend. We are, however, ready to assist in any possible way in order to reach a reasonable end result and to maintain a dialogue about the final form of the directive.

With co-operative regards,

Ville Oksanen
Master of Laws
Vice Chairman, Electronic Frontier Finland ry
ville.oksanen@effi.org
040 536 8583

Kai Puolamäki
Doctor of Philosophy
Member of the Board, Electronic Frontier Finland ry
kai.puolamaki@effi.org
050 522 8111

References:

[EPO] Examples of questionable software patentes, granted by EPO: http://swpat.ffii.org/patents/samples/index.en.html

[INN] J. Bessen, R. Hunt, "Empirical Look at Software Patents", 2003, http://www.researchoninnovation.org/online.htm.

[EGOV] Open standards are important for e.g. functional electronic governmental services. See for example: Commission of European Communities, "Linking up Europe: the importance of interoperability for e-government services", 2003.

[EFFECTS] Software Patent Work Group @ FFII, "Software Patents in Action", http://swpat.ffii.org/patents/effects/.

[GIF] League for Programming Freedom, "Burn All GIFs", http://burnallgifs.org/.

[MP3] Software Patent Work Group @ FFII, "MPEG-related patents on compression of acoustic data", http://swpat.ffii.org/patents/effects/mpeg/index.en.html.

[JPEG] Software Patent Work Group @ FFII, "Lossy Compression (JPEG et al) patents", http://swpat.ffii.org/patents/effects/jpeg/index.en.html; Wired News 19.7.2002, "JPEG Patent Claim Sparks Concern", http://www.wired.com/news/business/0,1367,53981,00.html.


Electronic Frontier Finland - EFFI ry was founded in 2001 to defend active users and citizens of the Finnish society in the electronic frontier. EFFI influences legislative proposals concerning e.g. personal privacy, freedom of speech and user rights in copyright law. We make statements, press releases and participate actively in actual public policy and legal discussions. EFFI has been featured in the national media including TV, radio and leading newspapers. EFFI also works in close cooperation with organizations sharing the same goals and values in the Europe, United States and elsewhere. EFFI is a founding member of the European Digital Rights and a member of Global Internet Liberty Campaign. More information from EFFI's home pages: http://www.effi.org/