FSFE’s opening statement at WIPO SCP/15



(Geneva, 11-15 October 2010)

Thank you Mr Chairman. We should like to thank you for the opportunity
to take the floor during this very important meeting.

The agenda includes several items of great interest to the Free
Software Foundation Europe, and the Free Software or open source
community at large. Free Software relies on licenses to give users the
freedom to use, study, share and improve a program. These licences in
turn rely on copyright.  Free Software is, however, fundamentally
incompatible with patents on software.

Free Software underpins an economy the worth of which is approaching
50bn. It has come to be widely used not only in general purpose
computers, but even more so in embedded devices such as cars,
televisions and elevators.

We applaud the committee and the secretariat for commissioning the
study led by Professor Bently, which provides a useful overview of a
complex field, and represents a starting point for future
debates. Free Software Foundation Europe brings practical experience
in this matter to the table, as we were a key participant in the
collective effort to convince the European Parliament to reject the
proposed software patent directive in 2005.

Contrary to our respected colleague from the International Chamber of
Commerce, we do believe that the relation between standards and
patents is a problematic issue which needs to be addressed by this
committee. In the area of software, patents by themselves are already
problematic enough. Including patents in standards on RAND terms adds
to the problem by discriminating against companies which have based
their activities on Free Software. The vast majority of these
companies are SMEs, which form the backbone of most economies around
the world. In this scenario, inventors have already received an
incentive in the form of a government-granted monopoly on their
invention. It should not be necessary to provide further incentives by
handing them control over the market.

However, this is a complex issues, and we will reserve our comments
for the time when this committee deals with the related agenda item.

We would also like to remind those which argue against state
intervention in the market for patents that a patent in itself is an
intervention of the state, limiting and directing the free flow of

We are looking forward to the discussion on exclusions from
patentable subject matter and exceptions and limitations to the
rights. Our view here is that in the field of software, only
exclusions provide the security which software companies
need. Exceptions will not suffice here.

Indeed, we propose a three-step test for inclusion of a subject matter
in the patent system:

If a subject matter is to be included in the patent system, there must

– a demonstrated market failure to provide innovation,

– demonstrated positive disclosure from patenting,

– and effectiveness of the patent system in the area to disseminate

We note that software does not pass any of these tests.

But again, we would like to reserve our detailed comments on this
topic to the discussion of the agenda item itself.

For the time being, Free Software Foundation Europe would like to
thank you for the opportunity to take the floor. We assure you of our
commitment to support this committee, and you as its chair, in giving
itself a proactive work program.

Thank you, Mr Chairman.