Letter to Industry Minister about software patents

May 31, 2005

Dear Hon. David Emerson, Minister of Industry,

I am enclosing an article about Software Patents that describes the worldwide market situation, with specific reference to the special interest lobbying in the European Union. The European Patent Convention (EPC) was signed by its core member states in 1973 and went into force in 1978, when the European Patent Office (EPO) was established on its basis. The EPC specifically excluded "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" (reference 1) from patentability based on very sound public policy reasons. There is now a powerful lobby, including software companies facing major competitive threats from alternative business models, that are seeking to remove these important exclusions.

In Canada a similar change happened without either judicial or parliamentary input. In the past Canada did not grant software patents. The major case in this area was Schlumberger (reference 2) which effectively stated that the existence of software neither adds to, not subtracts from, the patentability of an invention. This meant that if you had a generic computer and added software, you would still have a generic computer that would not be worthy of a new patent.

In the last few years the Canadian Intellectual Property Office (CIPO) carried out private "consultations" with patent agents on this area of policy. Asking a patent agent whether more subject matter areas should be patentable is like asking a used car salesman if more people should buy cars. Last year I submitted an Access to Information request(reference 3) to receive information from this consultation which not only reveled the responses (from law firms and IBM), but also pushed CIPO to finally publicly publish their new Manual of Patent Office Practices which documents the legal reinterpretations and loopholes they will use to grant pure software patents.

There are many ethical and practical reasons for exclusions to patentability. Patent policy is economic public policy, and yet there appears to be no economic studies that justify these radical changes to policy. All my reading indicates that in the field of software or business models that competition provides incentives for innovation, while patent monopolies are a chill against innovation.

Please investigate this situation. I have written more detailed articles which may also be helpful.

Yours sincerely,

Russell McOrmond, Ottawa, Ontario, Canada

Full contact information: http://www.flora.ca/#contact

Copies sent to:

James Rajotte (Edmonton-Leduc), Conservative Industry Critic

Brian Masse (Windsor West), NDP Industry Critic

Paul Crête (Rivière-du-Loup–Montmagny), Bloc Industry Critic

References:

1. Art 52 EPC: Interpretation and Revision http://swpat.ffii.org/stidi/epc52/index.en.html

2. Schlumberger Canada Ltd. v. Commissioner of Patents [1981] 63 C.P.R. (2d) 261 (F.C.A.), dismissing leave to appeal (1981) 56 C.P.R. (2d) 204 (S.C.C.)

3. Reply to ATIP is file A-2004-00246 , published at http://www.flora.ca/A-2004-00246/

NewsForge

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Title: Stallman: Nokia's patent announcement next to nothing

Date: 2005.05.30 7:51

Author: Richard Stallman

http://trends.newsforge.com/article.pl?sid=05/05/30/1155209

Last year IBM took a significant step forward in cooperation with the free software community, by offering blanket licenses for 500 of its patents to all free software developers. These are but a fraction of IBM's software patents, but still it was a substantial step. These 500 patents, at least, are no longer a danger to free software developers.

Since then, various other companies have been exploring how little they can give to the free software community and still pose as our supporters.

In January it was Sun's turn. Sun's announcement, if read quickly, appeared to say Sun had authorized free software developers to practice thousands of software patents. In fact, the announcement didn't really give anyone anything. Sun merely reminded us that Solaris is free software and that Sun would not sue us for using that. However, all other free software projects still face the threat of patent lawsuits from Sun.

This week it was Nokia's turn. Nokia announced it would not use its patents to attack the developers of one specific free software project: the kernel Linux, developed by Linus Torvalds and others, which is most prominently used as the kernel of the GNU/Linux operating system.

Unlike Sun's empty gesture, this isn't nothing. It is good to know that one important free software project will not be attacked by this particular megacorporation. But the Free Software Directory lists over 4,000 free software packages. Nokia's announcement says nothing about them, so they still face the potential threat of being attacked by Nokia in the future. Nokia's announcement isn't nothing, but it is next to nothing.

We can honestly thank IBM for agreeing not to sue us with 500 of its patents, and we can thank Nokia too for agreeing not to attack one of our community's projects. But don't be distracted from the real issue at stake. Nokia most likely intends to use this announcement as a way to put us in more danger.

Nokia, along with IBM and Microsoft, is lobbying hard for software patents in Europe. Nokia will surely point to its own small gesture as "proof" that software patents will not be devastating to free software.

In fact it proves just the opposite. If Nokia's pledge not to attack a single free software project amounts to anything, it shows that Nokia's continued threat to all other free software projects amounts to real danger. And so does the threat from many other patent holders, most of which have not pledged even the slightest support to our community.

In effect, Nokia is lobbying the European Union to give Nokia and many others a new kind of weapon to shoot at software authors and users with--and telling the legislators, "Don't worry, it's safe to let private armies carry these guns, because we promise that our gunmen won't shoot anyone in that building."

The danger of software patents is not limited to free software. Developers of proprietary software (and its users) can also be sued for patent infringement. But the majority of software is private-use software, developed for and used by one client. Its developers (and its users) also face software patent lawsuits. This is why most businesses in Europe are against software patents--a recent German government study found 85% opposition. But the megacorporations are spending lots of money to lull the European Parliament into ignoring all opinion except theirs. They frequently offer false and irrational arguments, hoping that the legislators won't recognize the error and that no one else will point it out to them.

To prevent the imposition of software patents in the EU we will need 50% of the members of the European Parliament to vote against them. Convincing these members requires lots of phone calls. (A phone call is much more effective than email.) Citizens of the European Union, please telephone each one of the members of the European Parliament in your region, and say you want them to support the JURI committee and vote against software patents. If they say that the directive won't authorize software patents, educate them based on the information you can find in ffii.org. That site offers advice on how to communicate with MEPs, useful arguments and facts, and background information.

PS. If you can present me with a copy of a real threat letter that was sent by a patent holder to a free software developer, that would be useful.

Copyright 2005 Richard Stallman

Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved.

Links

1." Free Software Directory" - http://www.gnu.org/directory