February 16, 2005

Subject: European Patent Directive (2002/0047 COM (COD))

Dear Commissioner McCreevy,

Irish Free Software Organisation would like to very briefly justify our request that the "software patents directive" should be restarted.

Every patent is a regulation on software writers. The added bureaucracy of obtaining permission to use a software idea, and the added legal costs of patent searches and litigation would greatly harm the Lisbon Strategy's aim to increase the competitiveness of the EU.

On Feb 2nd, you said "Having no directive means continuing to rely on case law, which leads to considerable legal uncertainty". IFSO agrees with this. However, the Council's text, which relies on undefined terms such as "technical contribution", "industrial", and "technical field", could only yield an outcome that would require case law to define the the scope of patentability.

The amendments adopted by the parliament to fix these problems were backed by a 75% majority. JURI voted 19-to-1 to call for a restart. Since the MEPs in the European Parliament and the JURI committee are the only directly elected representatives involved in this process, it would be a regrettable example of the EU's "democratic deficit" if they were ignored.

The costs of patent searches and the possible cost of litigation, whether the litigator's claim is valid or not, are too high for any individual and most businesses. For writing software, the introduction of patents on software ideas would not just raise the barrier to entry, it would create a barrier where previously there was none.

The US Federal Trade Commission's 2003 "Report on Innovation", which was a general review of the patent system in the US, said that "software and internet patents" were obstructing innovation and causing "patent thickets" for software writers. The report gave no redeeming qualities for such patents.

Yours sincerely

Malcolm Tyrrell