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Software Patents: Mr Linux, Mr MySQL, and Mr PHP Appeal to the EU Council

Torvalds, Widenius, and Lerdorf urge: "Exclude software from patentability"

Here is the full text of the "Appeal to the EU Council" made yesterday by Linus Torvalds, Michael Widenius, and Rasmus Lerdorf, in an attempt to persuade the European Union to exclude software from patentability and thereby, as they put it, "gain a major competitive advantage in the information age."

" Appeal to the EU Council by Linus Torvalds, Michael Widenius and Rasmus Lerdorf

23 November 2004

Later this week, on November 25th and 26th, the EU Competitiveness Council will convene and soon attempt to formally adopt a proposed "Directive on the Patentability of Computer-Implemented Inventions", commonly referred to as the "software patent directive". On May 18th, the Council reached political agreement on a draft legislation, however, did not take a formal decision to adopt it.

We urge the governments of the EU member states, which are represented in the EU Council, to oppose the debateless adoption of the said proposal as a so-called "A item". In the interest of Europe, such a deceptive, dangerous and democratically illegitimate proposal must not become the Common Position of the member states.

We ask all webmasters to help prevent the legalization of software patents in the EU by placing a link to the campaign website www.NoSoftwarePatents.com.

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The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability. However, it is actually a compilation of the entirety of the excuses with which the patent system has, for many years, been circumventing article 52 of the European Patent Convention in order to grant patents on software ideas.

Those who say that the directive would not allow patents on software attach a peculiar definition to the term "software" that is hair-splitting. The proper way to distinguish between software patents and patents on computer-controlled devices is to exclude the processing, handling and presentation of information from the definition of the word "technical" for the purposes of patent law, to disallow patents on innovations in the field of data processing, and to establish the hard and fast requirement that natural forces are used to control physical effects beyond the digital sphere.

The legislation in question contains many provisions that appear to be helpful if one understands "technical" in a common-sense way. However, the patent system has previously expressed and demonstrated its own definition of that term, which is one that encompasses almost anything that a computer can possibly do. Moreover, article 5 (2) of the legislative proposal tears down all barriers to the patentability of software by expressly allowing so-called "program claims".

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Software patents are dangerous to the economy at large, and particularly to the European economy. Lawmakers should heed the warnings of such reputable organizations as Deutsche Bank Research, the Kiel Institute for World Economics, and PricewaterhouseCoopers.

At first sight, a patent appears to protect an inventor but the actual implications may be the opposite, dependent upon the field. Copyright serves software authors while patents potentially deprive them of their own independent creations. Copyright is fair because it is equally available to all. A software patent regime would establish the law of the strong, and ultimately create more injustice than justice.

In particular, we believe that the economic opportunities of the new EU member states are endangered by software patents. The many talented software developers in those countries should be given a fair chance. The average cost of a European patent is in the range from 30,000 to 50,000 Euros, and a company needs a very large number of such patents in order to be able to enter into "cross-licensing" agreements with multinationals that own tens of thousands of patents each.

The political decision on the patentability of software should be based on merits, economic logic and ethical considerations, not on whatever may have been the practice of the patent system in recent years. Let us all look ahead, not back.

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If the EU Council adopted the legislative proposal of May 18th, it would do so without democratic legitimacy. The idea of a debateless and voteless adoption of an "A item" is only to speed up and simplify the process if a qualified majority is in place. In this particular case, there isn't.

As of November 1st, new voting weights apply in the EU under the Act of Accession. The collective number of votes of all countries that affirmatively supported the legislative proposal on May 18th amounts to 216, falling short of the required 232. It would set a more than regrettable precedent for European democracy if the EU Council adopted a Common Position on an insufficient basis.

Furthermore, the 216 votes include those of the Netherlands and of Germany against the will of the national parliaments of those countries. On July 1st, a broad majority of the Tweede Kamer passed a resolution that the Dutch government withdraw its support for the legislative proposal in question. On October 21st, all four groups in the German Bundestag took a similar position and criticized the legislative proposal of May 18th as a legislation that would allow software patents.

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For the sake of innovation and a competitive software market, we sincerely hope that the European Union will seize this opportunity to exclude software from patentability and gain a major competitive advantage in the information age.

Linus Torvalds
Michael Widenius
Rasmus Lerdorf "

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