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jhrose_e16_free_b.doc 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 1 of 3 jhrose_e16_free_b.doc 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]. 2 of 3 jhrose_e16_free_b.doc 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 3 of 3