Heated reactions to Council vote on software patents

MEPs, SME groups and anti-patent campaigners have reacted angrily to the ministerial agreement on software patents, promising a bumpy ride in Parliament at second reading.

EU ministers agreed on 7 March on a common position on the controversial software patents directive, amid warnings that the bill was likely to face rejection by MEPs. 

The Spanish delegation voted against while the Austrian, Belgian and Italian delegations abstained.

The agreed text seemingly tries to take the Parliament’s views on board by stating that patents on computer-implemented inventions can be delivered only to inventions which “belong to the field of technology”.

“In order to be patentable, a computer-implemented invention must be new, susceptible to industrial application and must involve an inventive step,” the agreement states. This, it adds, actually means such inventions “must make a technical contribution to the state of the art” of the technology.

According to the text, computer programmes as such – whether expressed as a source code or which implement business or mathematical methods and do not produce any technical effects – will not be patentable.

Furthermore, the agreement says particular attention is to be given to cases where “a dominant player refuses to allow the use of a patented technique which is needed […] to allow communication and exchanges of data” between two different computer systems.

The Business Software Alliance (BSA) welcomed the ministers' agreement, saying that a formal clarification of EU law in this area was "long overdue". "More than 30,000 European patents have already been granted for computer-implemented inventions in Europe over the past decade," the BSA points out. To ensure that SMEs benefit from stronger patent regulation, the BSA has proposed a system for tracking patent data at the European Patent Office (EPO) and at national levels. 

The European SME organisation UEAPME described the Council decision as "a blow", and expressed concerns that the directive would "reinforce monopolisation in the software sector". UEAPME fears that the open sourcing process "which has enabled innovation in the sector to thrive, would become almost impossible under a patenting system".

The Campaign for Creativity - a group defending the legal rights of artists, designers engineers and software developers - said that it was "relieved" that ministers decided to "defend [the EU's] innovative high-tech industries" against big competitors including India and China. These countries, C4C points out, "are introducing CII patents to encourage and protect their innovators".

Anti-patents campaign group NoSoftwarePatents described the vote as a "mockery", claiming that the ministers' position was adopted for institutional reasons only. 

The European ICT industry association EICTA welcomed the agreement, saying that the ministers’ common position provides "a balanced framework to protect and encourage innovation throughout Europe". 

The Parliament's internal market committee deputy chair Zuzana Roithová MEP (EPP/ED, Czech Republic), said that "the text of the directive is highly discriminatory to small and medium sized enterprises in the computer industry field". She warned against a looming institutional conflict after the Commission and Council ignored MEPs call for a redrafting of the proposal. "I consider the current development as scandalous," she declared, adding that "common sense will win otherwise the European Council will face a rejection by the majority of MEPs".

The Greens described the ministers' vote as "a slap in the face" for Parliament as previous MEP calls to redraft the proposal have been ignored. "The Council has apparently fallen on its knees before the likes of Microsoft, and betrayed the interests of Europe's software developers," commented Monica Frassoni, co-president of the Greens/EFA Group. "From this moment on, the Greens will work to assemble as large a lobby as possible to ensure that the current proposal for the directive doesn't get through Parliament's second reading in its present form," Frassoni warned.

Internal Market Commissioner Charlie McCreevy said he had "listened to the views expressed both in the European Parliament and in member states", adding that he will "work to make sure these concerns are taken into account in the interest of a balanced result".

The proposal to streamline the delivery of patents for computer-implemented inventions has created controversy since the Commission introduced the proposal in 2002. 

In the latest development before the ministerial agreement on 7 March, the Parliament's legal affairs committee overwhelmingly called on the Commission to restart the whole process and submit a new proposal (see EURACTIV, 4 Feb. 2005).

Despite the insistence of political group leaders in Parliament, Internal market Commissioner Charlie McCreevy refused, arguing that such a move would lead to chaos in the procedure. 

In the absence of a decision, national patent offices will remain in a position to grant patents on computer-implemented inventions.

The bill will now be sent to Parliament for approval in second reading (Rapporteur: Michel Rocard, PES, France).

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