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In response to:
E-NOTICE IPPD/16/2002
14 March 2002
EUROPEAN COMMISSION PROPOSAL FOR A DIRECTIVE ON THE
PATENTABILITY OF COMPUTER-IMPLEMENTED INVENTIONS

Free software and patents.
1. This note serves as a call to the U.K. government patent office and the Commission to
   consider further the complementary use of copyright free software together with the
   patent process. My subjective view is that software patents in general are inferior to
   copyright protection for evolving software in society. However, both methods should
   be objectively used to benefit the internal market.

2. Plainly put, the Commission’s goal in this directive is to strengthen the E.U.
   economic environment through improved utilisation of the patent process. [note 1 page
    17]: “The realisation of t he internal market implies the elimination of restrictions to free circulation
    and of distortions in competition, while creating an environment which is favourable to innovation and
    investment. In this context the protection of inventions by means of patents is an essential element for
    the success of the internal market.” But there lacks recognition of the complementary use of
    copyright protection, which I consider an oversight and is contended herein. The note
    continues “Effective and harmonised protection of computer-implemented inventions throughout the
    Member States is essential in order to maintain and encourage investment in this field ”, which is
    clearly laudable and not brought into question here.

3. I shall use the term ‘free software’ to refer to software that is both freely available and
   protected by copyright. This includes open source, the Free Software Foundation
   (FSF) and other software in which all source code is available for inspection,
   copying, modifying and redistribution. Similarly I shall use the term ‘patent software’
   to refer to software that is subject to a patent claim and available for inspection.

4. To fully address its wide-ranging goal the Commission ought to take a long-term
   view, placing less emphasis on short-term gains. That is to say short-term business
   gains need to be well-balanced with long-term evolution beneficial to all. Free
   software plays a significant role in education and evolution since it is readily
   available for people to inspect, like patent software, but it further permits copying,
   modifying and redistribution. Moreover, the free software approach calls for people
   to become involved unlike the more guarded patent approach. The Commission could
   involve free software to help bring about the longer-term and on-going benefits it is
   seeking.

5. The U.K. and Europe have enjoyed world-class leadership in computing, but more
   recently have been losing some ground. To perpetuate a position of strength, our
   universities play a significant role and our community expertise in innovation and
   R&D should be better tapped, which the Commission recognises in making this
   patent directive. Both universities and SMEs are using free software more and more,
   like GNU/Linux and embedded systems cross-compilers as examples. In turn more
   Europeans have been educated and seek to maintain a committed stake in the free


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    software market. Commission support for free software has the potential to help
    perpetuate the E.U. position.

6. Open source is one branch of free software that looks to tap a market. Through
   GNU/Linux noticeably, this market is readily becoming large involving leading
   companies and governments worldwide in addition to SMEs. This is not just limited
   to the established economic strongholds either. For example, the Chinese government
   (which has recently been welcomed into the WTO) places significant emphasis on the
   free software market. Others are giving it serious attention too, including Mexico,
   India and various African countries. It would seem beneficial if E.U. companies were
   encouraged to trade competitively in the free software marketplace. The Commission
   could play a leading role in this respect, by embracing this burgeoning market
   alongside the patent process.

7. Free software can be had for little cost, often the price of downloading from the
   Internet. Money saved on software license payments can be reallocated elsewhere, for
   example in salaries, equipment or in spending on further R&D. This is especially true
   for SMEs where budget projections can prove crucial in making development
   commitments. Alongside patent promotion and awareness programs, the Commission
   could help pave the way and garner further investment by SMEs and others in the free
   software market by proclaiming the method.

8. On the other hand, patent software should be ‘not just for Christmas’. That is to say
   patents ought to be considered not just a means for holders to print money. It would
   make sense to see an on-going requirement for patent holders to effectively promote
   and encourage take-up of their inventions, furthering the Commission’s goal and
   giving back to the community that helps support them. Suitable means to this end
   might involve annual reports or filings on patent-related commerce into a public
   database. Failure to provide such feedback could possibly result in patents to lapse
   prematurely and would distinguish the active from the inactive inventions.

9. While the Commission’s goal is praiseworthy, there remains concern with the
   policing and assessment of patents in the free software market. Re-stating my earlier
   response to the U.K. consultation, these include policing and compliance, and
   provision of adequate and affordable public search facilities.

10. Notwithstanding the Commission’s patent directive reads clearly, one significant
    problem remains the potential for free software to be inappropriately appropriated in a
    patent application. To help avert such possibility, a means for patent assessors and
    claimants to retrieve information on available free software is required [uk.gov pt.8] , so
    those patent claims involving free software and lacking other technical contribution
    are rejected (they would fall under the ‘obvious’ clause in article 2 [uk.gov pt.9]). It is
    not per se the Commission’s responsibility to provide a database of free software, but
    cooperation with dependable third parties, like FSF-Europe, could assist when
    conducting patent software claims [uk.gov pt. 15].




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11. Complementary means of protection should encourage take-up of patent software.
    Patents [¶36] “do not in general extend to acts done privately and for non-commercial purposes”
    [uk.gov pt.6]. The adaption of patent software through free software for non-profit
    purposes should be looked upon favourably, particularly where such activity furthers
    the internal market. This includes the patent holder who might profit in a broadening
    of the marketplace as a direct result of such free software interests. In conjunction
    with patent promotion and awareness programs, the Commission could help
    encourage free software re-engineering by articulating it.

12. Moreover the union of patent software and free software increases the market breadth
    and therefore benefits the community. Should a claim fall short then the patent office
    might be able to encourage the claimant to consider copyright and free software as an
    alternative route, in order to benefit the community or unlock a marketplace. In fact
    this could be achieved through the leaflets and other promotions currently being
    considered by the Commission for the promotion of patents to SMEs.

13. While further points could be made, I hope my view is adequately identified. So to
    summarise, the Commission’s goal to promote the internal market is laudable. But I
    hope to have offered some good reasons for the Commission and national patent
    offices to further consider free software alongwith the patent process to help achieve
    this goal. I assert free software would not be in conflict with patent software since
    free software is not for profit and where a patent claim is rejected upon article 2
    where it involves free software and no other technical contribution. Better than that,
    the two methods should be encouraged to co-exist effectively.

14. Re-stating issues presented in the U.K. consultation conclusions, there are practical
    problems for SMEs, individuals and other non-profit outfits to assess compliance in
    addition to problems facing patent assessors considering claims within the
    marketplace. Some of these factors could be eased if the Commission and national
    patent offices cooperate transparently with the free software community in sharing
    information, via say FSF-Europe or an Internet database like SourceForge for example.

julian rose
26 March, 2002




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