Dear Minister for Enterprise, Trade and Employment, Micheál Martin,

At the March 7th meeting of the Competitiveness Council, the
controversial "software patents" Directive (2002/0047 COD) is likely
to be inserted into the list of A-items. We strongly urge you to
object and request that the directive be put on the list of B-items.
In the case of this directive, there no longer exists the majority
support required for it to be an A-item.

There are two main grounds on which you could justify the directive's
reassignment as a B-item. Firstly, it no longer enjoys a qualified
majority support: Poland, The Netherlands, and Germany no longer
support it, and the recent readjustment of EU voting weights further
reduces support for the directive. In light of this, the council
cannot legitimately claim that it has agreement.

Secondly, there is now substantial opposition to the current text in
the European Parliament. The redrafting of the parliament's amendments
by the Competitiveness Council in May 2004 was considered by many to
be a snub, and there are concerns that the correct procedure was not
followed. In the last month, the parliament unanimously supported a
motion requesting a restart of the proceedings and this request was
rejected by the commission. If the council waves through the directive
without discussion, it will exacerbate recent tensions between the
various institutions of the EU.

The controversy caused by the current text of the directive is due to
the fact that its formal content contradicts one of its stated
functions: preventing pure software from being patented. A careful
consideration of the text shows that nothing in it actually prevents
this. For instance, the text repeatedly relies on undefined and
ambiguous terms such as "technical", "industrial", and "invention".
Although definitions for these terms were added by the parliament in
September 2003, they were inexplicably removed by the May 2004
Competitiveness Council. Another common problem with the text are the
clauses of the form: "[A] is not patentable, unless [condition B] is
met". Upon scrutiny, condition B is always met. There is no
justification for permitting this kind of ambiguity in important
European legislation. It is clear that the directive needs further
consideration.

The above arguments constitute more than enough justification for
objecting to the directive as an A-item. In addition, there are many
reasons why the directive should be rejected from the perspective of
European Competitiveness.

It is now broadly accepted that software patenting would be harmful to
Europe's indigenous software industry. Important commercial entities,
most notably Deutsche Bank, PriceWaterhouseCooper and the Kiel
Institute, have identified many harmful aspects of the current
proposals and have urged the EU to change direction. In the US, 
the Federal Trade Commission recently published a report on the patent
system there and judged the effects of "software and internet patents"
to be wholly negative.

The harm software patents do to a competitive software market can be
illustrated by the following two examples: The administration of the
city of Munich, which is attempting to migrate from Microsoft Windows
to GNU/Linux, identified software patents as a specific danger and
advocated special clauses in the contracts for such bidders. The UK
School Authority use of Bromcom equipment resulted in the advice not
to consider taking equipment from other manufacturers because of a
software patent held by Bromcom.

Europe's competitiveness lies in its potential as a dynamic market of
innovation; software patents will stifle this innovation rather than
promote it. The burden of software patents will put Europe's SMEs,
which comprise most of Europe's indigenous software industry, at a
competitive disadvantage in their own market. A consequence will be
that established and almost exclusively foreign software monopolies
will be maintained.

Given that there is no actual agreement on this controversial
directive, the Irish Free Software Organisation calls on you to object
to the the presence of the directive as an A-item.

Dr. Malcolm Tyrrell,
on behalf of the Irish Free Software Organisation,
http://www.ifso.ie.