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Dear members of the European Commission

I am replying on behalf of

LINUX USER GROUP BOZEN-BOLZANO-BULSAN (LUGBZ) Oberplanitzing 51 I-39052 Kaltern http://www.lugbz.org

Contact person: Patrick Ohnewein patrick.ohnewein@lugbz.org

The Linux User Group Bozen-Bolzano-Bulsan (LUGBZ) is a non-profit and non-governmental organization dedicated to the diffusion and manifestation of the operation system GNU/Linux and the free and open source software in general.

LUGBZ is primarily active in Italy and has about 50 active members. The organisation represents the opinion of people with different professional activities but with the same dedication to free software and the same fear and concerns about software patents in the EU.

Here the answers to the questionnaire:

Section 1 We agree, as the questionnaire states, that the patent system ... should be used ... for the benefit of all "society". Thus, like all law, it should be applied where it benefits all society, and excluded from where it would cause overall harm to society. Where the questionnaire speaks of "breathing-space" for patent owners, LUGBZ would like to note that non-industrial activities of citizens must not be restricted by being designated as the exclusive "breathing-space" of a patent holder. That is to say that democratised acts, such as software development and use, and the acts of presentation and publication of information, which society is able to participate in, should not become prohibited for the purpose of giving "breathing-space" to patent holders. Also, for clarity, we note that we do not regard the list of four patent system features as being given in order of importance.

1.1 Do you agree that these are the basic features required of the patent system?

On the four proposed desirable features for a patent system, LUGBZ would like to make one modification, one clarification, and one addition. The modification is to the first point. LUGBZ does not believe that overall objectives of the patent system should be compromised by (or "balanced with") "the interests of the right holders". The existence of rights holders is an artificial measure which occurs to serve the goal of the patent system. Giving power of rule-drafting to a group which is created by the rules could only yield an outcome with a clear conflict of interest. The only balancing to be done is balancing the harm/burden to society with the benefit to society. The clarification is that to make "clear substantive rules", the set of 21 amendments which were submitted by members of all EP parties before the July 2005 vote on the "Software Patents" directive should be used. We believe that the European Patent Convention is clear, however, the actions of the European Patent Office and the expressed will of the citizens of Europe show that it should be made even clearer by the 21 amendments being incorporated. The addition is described in our answer to 1.2

1.2 Are there other features that you consider important?

The addition is that patent law must advance society rather than inhibit it. Innovation, when it can be driven by public interest - via public participation as well as via the market - and when it is produced in a way that the public will benefit from it, should be encouraged. The patent system should therefore enable people to further themselves, individually, or as a business. This should go without saying, but patent law proposals such as the now-rejected "software patents" directive show that this must be explicitly kept in mind.

1.3 How can the Community better take into account the broader public interest

To better take account of broader public interest, developers of European patent policy should look at the issues from the perspective of all stakeholders. It must be kept in mind that some fields of endeavour are the exclusive domain of large companies. The manufacture of cars and pharmaceuticals are two examples. For these domains, medium-to-large financial, bureaucratic, and legal restrictions can be justified because those who bear the burden can be expected to have the necessary financial and legal resources. In stark contrast, in the field of software, even small financial, bureaucratic, or legal restrictions would cripple most developers of software because most developers of software are individuals, small companies, medium sized companies, or companies whose core business is not software development. Maximum transparency, the interests expressed by the public, and the involvement of the directly elected European Parliament, is also requested.

Section 2 2.1 By comparison with the common political approach, are there any alternative or additional features that you believe an effective Community patent system should offer?

Yes. It is imperative that the separation of power, a foundation of European democracy, is maintained - and improved when possible. As such, one issue that LUGBZ sees is that Judges on any such "Community Patent Court" (the Judiciary) should not come from the Executive or Legislative bodies of the patents field. The mixing of legislative power into the European Patent Organisation (and executive body) is already being seen by some as the root of problems in European patent law. LUGBZ is also concerned about the transfer of patent-granting power to the European Patent Office (EPO). The EPO has granted many patents contra to the European Patent Convention, and the non-legality of those patents has been confirmed by rejection of them in national courts. With this history, the EPO must clearly be given a more limited, supervised, and accountable role in the patent process.

Section 3 3.1 What advantages and disadvantages do you think that pan-European litigation arrangements as set out in the draft EPLA would have for those who use and are affected by patents?

The advantages of such arrangements can only really be judged by the content and substance. An agreement which protects Europe from the existence of software patents, either by legalisation or the granting procedure, would be beneficial because it would avoid imposing industrial restrictions on those who cannot bear such restrictions. We feel, however, that arrangements made within the EU legislative process are more likely to produce such results. The EU's legislative process already has problems with lack of citizen awareness and participation. Allowing the circumvention of this process for a process further removed from the people is an anti-democratic direction which should be avoided. Instead, democratic processes should be followed and ways should be sought to lower the barrier of entry for citizens and all stakeholders to participate in the legislative process. One particular point is that any created courts must very carefully avoid conflicts of interest. Judges on such courts must not have prior history within any of the various patent offices or any organisation with a financial interest in any of the European patent systems.

3.2 Given the possible coexistence of three patent systems in Europe (the national, the Community and the European patent), what in your view would be the ideal patent litigation scheme in Europe?

LUGBZ would like to highlight Article 6 of the European Convention on Human Rights, particularly with regard to the right to an independent and impartial judiciary. On litigation schemes, LUGBZ would like to make the comment that litigation schemes focus on dispute resolution. While this can be beneficial by creating case law, it is more important to have clear rules which can be interpreted clearly by citizens and lawyers without unnecessarily leaving open the need for court cases. Reliance on court cases favours a small section of society who can comfortably carry the legal and financial burden of carrying such a court case to it's conclusion. Thus, LUGBZ would prefer that such bureaucratic barriers be avoided by the incorporating of the wording such as that from the 21 amendments proposed for the second reading of the patents directive in July 2005.

Section 4 4.1 What aspects of patent law do you feel give rise to barriers to free movement or distortion of competition because of differences in law or its application in practice between Member States?

The greatest barrier to free movement is the fear that can exist, among bodies who do not have the spare resources for defending - possibly spurious - patent litigation threats, of appearing on the radar of a patent holder. The greatest distortion of competition is the use of industrial law against individual citizens and businesses who are not in the same industry as the patent holder. Harmonisation could be beneficial if it included clarifications which could prevent the misreading of the EPC. To do this, the 21 amendments proposed by many MEPs before the July 2005 vote, should be incorporated.

4.2 To what extent is your business affected by such differences?

We are a user of software, and although LUGBZ is not in the business of developing software for profit, some of us nonetheless develop a lot of software because that is the normal way to use computers. Software patents could have the effect of preventing our members and other individuals from creating new and free IT infrastructures or from distributing the software which the free software community develops. Uncertainty in the law confounds this.

4.3 What are your views on the value-added and feasibility of the different options (1) - (3) outlined above?

Suggestion #1: subject matter is the core issue and must be more clearly addressed. Suggestion #2: lacks definition and cannot be commented on. Suggestion #3: is the most problematic of all. The conflict of interests inherent in patent offices which are funded by accepting patents would be greatly amplified as offices could compete. Adding a validation step involving the European Patent Office would be a sham. It would have no appreciable effect on the inherent problem as the European Patent Office has the worst history of all European patent offices for expansionism/inflationism of patent law with regard to subject matter and of lowering the standard for other criteria. European Patent Office practice is the exact problem which must be addressed before there can be the possibility to create added value.

4.4 Are there any alternative proposals that the Commission might consider?

Alternatives should begin with the 21 amendments which were proposed by members of all the EP parties for the July 2005 vote. From there, a system being developed must contain separation of power, transparency, and must be accountable when it strays from it's mandate. Also, the current financial incentive for patent offices to accept applications must be addressed. One option is to have the same fee charged for patent application reviews, whether they are accepted or rejected. The system whereby patent offices receive greater income for accepting more patents creates a system which is very close to making the patent offices "sellers" of patents. To prevent patent offices from aiming to maximise sales, checks and balances could be introduced; but there is no evidence that these could be relied on, so it seems also necessary to fix the financial incentive.

Section 5 5.1 How important is the patent system in Europe compared to other areas of legislation affecting your business?

The patent system, if stretched to cover software, would pose great danger to all European software developers (businesses and individuals), harm to Europe's software infrastructure, and distortion of competition law. Saving Europe from this harm is a high importance to LUGBZ. Using the patent system is a non-priority for us, and would get an importance of 1. Participating in the administration and monitoring of the patent system is of vital importance to us because changes in patent law propose a real and serious threat, and would get an importance of 10.

5.2 Compared to the other areas of intellectual property such as trade marks, designs, plant variety rights, copyright and related rights, how important is the patent system in Europe?

On this, we would draw attention to the fact that the US Federal Trade Commission, having reviewed the overall patent system in the USA, commented that the patent system would be better if it was more selective about what subject matter is covered, and it gave a wholly negative report on the outcome of the patenting of software and Internet ideas. As mentioned in answer to question 5.1, using the patent system is of no importance to us (1), but preventing patent legislation from becoming harmful is of very high importance (10).

5.3 How important to you is the patent system in Europe compared to the patent system worldwide?

Patent legislation in Europe is of great importance. Europe has the opportunity, starting with the 21 amendments, to introduce highly beneficial patent legislation and to become a World leader of sensible patent policy. On this, the USA missed the boat.

5.4 If you are responding as an SME, how do you make use of patents now and how do you expect to use them in future? What problems have you encountered using the existing patent system?

We are not responding as an SME, and as an organisation representing software developer and user we do not have a need for using the patent system. We would like to comment that the barriers to entry which are inherent in all patent systems are too great for participation to be economically viable for our members and most European software developers. This is not a complaint and is not something we ask the European Commission to fix. Software ideas and usage should not be patentable. This is only a comment to highlight the economic absurdity software patenting.

Instead, LUGBZ are used by the patent system. Because LUGBZ uses free software projects to create its own software infrastructure, the patent system could make LUGBZ a target for patent litigation and a potential market tool and even a potential revenue source for others.

5.5 Are there other issues than those in this paper you feel the Commission should address in relation to the patent system?

As mentioned in the preceding answers, other issues to be addressed are the sensible exclusion of software ideas from patentable subject matter, the separation of powers which prevents distortion of law in democracies, the abandoning of the European Patent Organisation's case law, and the implementation of an accountable system with proper checks and balances. The costs, restrictions, and burdens created by the patent system do not seem to be fully considered. Bureaucratic processes are sometimes necessary, but they slow society and must be minimised. It must be kept in mind that every patent is a regulation. Every patent is bureaucracy.

Yours faithfully,

Patrick Ohnewein President of Linux User Group Bozen-Bolzano-Bulsan