Tension grows as Council prepares to vote on software patents directive

The Irish Presidency’s compromise deal on
the software patents directive is to go to a vote on 18 May
without discussion. The text sparked an outcry among MEPs and
rights campaigners.

The Irish presidency has tabled a compromise deal on
the software patents directive which is scheduled to be
voted on by EU ministers at the 18 May Competitiveness
Council. According to the Council press service, Germany
(abstaining), Belgium (opposed) and Denmark (unpronounced
as of yet) are the only countries who have not accepted
the compromise. Because there is so little opposition
among the Member States, the Irish presidency is
considering tabling the text without debate. 

But the draft is already stirring much criticism from
anti-patent campaigners. They claim that the amendments
introduced by Parliament in September last year have been
scrapped almost entirely. And MEPs themselves have
expressed dismay at the Council’s choices.

If approved by EU ministers, the Irish compromise will
have to return to Parliament for a second reading as not
all of the MEPs’ amendments were taken on board.

The directive was voted on by Parliament on 24
September 2003. MEPs introduced numerous 
amendments

, reflecting concerns by critics from diverse backgrounds
who claimed the Commission proposal would introduce a
US-style regime under which large companies can acquire
unlimited software patents to protect them from
competition. 

MEPs in particular insisted that the directive should
not lead to “any drift towards the patentability of
unpatentable methods such as trivial procedures and
business methods”. To them, the technical
contribution referred to in the Commission proposal has
to offer an “inventive step” defined as
something “new, non-obvious, and susceptible of
industrial application”. They recommended applying a
test in order to verify this. In addition, they claimed
that a mathematical algorithm in itself should not be
patentable unless it its used to solve a technical
problem.

The Parliament was also wary not to damage provisions
of an existing directive (91/250/EEC on the legal
protection of computer programmes) under which rights
holders are forced to disclose information to ensure
interoperability with other applications.

MEPs

from all major political parties have expressed
discontent at the Irish presidency compromise for
ignoring the Parliament's position. MEP 
Arlene MC Carthy

(PES, UK), the Parliament's rapporteur on the
dossier, told EURACTIV she is not surprised at the
Council's position: "Member States have been
heavily lobbied by industry. The Parliament's vote
was clear - we do not want software per se to be
patented. We want strict interpretations and criteria for
genuine inventions. The Council Common Position is not
the final word. The new Parliament will have a second
reading and I expect there to be some tough talking and
negotiations". 

Speaking to EURACTIV, a spokesperson at the 
Irish Department of Enterprise, Trade and
Employment

said the compromise merely reflected the position of
Member States' experts at the Council's Working
Party on Intellectual Property (Patents). The
spokesperson indicated the second reading in the
Parliament would provide another opportunity for MEPs to
move away from the Council's common position.

European Industry Association for Information Systems,
Communication Technologies and Consumer Electronics

EICTA

) says it is "quite satisfied" with the Irish
compromise text. Speaking to EURACTIV, it expressed
satisfaction at the removal of a proposal from the
Luxembourg delegation concerning Article 6a on
interoperability. This, EICTA said, would have rendered
it "impossible" for European companies to
develop and protect innovations that depend on data
communications. To EICTA, the Irish compromise would
implement the status quo of the European Patents Office
"with clarification and tightening", as
adovated by the industry association.

The Foundation for a Free Information Infrastructure

FFII

) is leading a campaign against the directive. It says
the compromise agreement clinched by the Irish Presidency
discards all the Parliament amendments aimed at limiting
patentability. It says that the rejection of the
Luxembourg delegation's attempt to ensure
interoperability leaves the door open to unlimited
patentability of computer programmes, data structures and
process descriptions.

Major European companies

including Nokia, Philips, Siemens, Ericsson and Daimler
Chrysler have issued a joint statement on 13 April 2004.
They call for all EU ministers to support the text
proposed by the Irish Presidency: "We commend the
Irish Presidency for presenting a balanced text which
preserves the incentives for European innovation (...)
while responding to the European Parliament’s call
for limitations to ensure that patentability does not
extend into non-technical areas or unduly hinder
interoperability in our increasingly networked
society," the statement reads.

Internal Commissioner 
Frits Bolkestein

is strongly opposed to the Parliament's amendments
which he thinks are "unacceptable". He
threatened to withdraw the proposal altogether and go
another route: "If I may be blunt (...) the process
of renegotiation of the European Patent Convention would
not require any contribution from this Parliament,"
Bolkestein told MEPs before they voted on the text in
September last year.

On 20 February 2002, the Commission presented a
proposal for a Directive on the Patentability of
computer-implemented inventions. These are defined as
inventions "involving the use of a computer,
computer network or other programmable
apparatus". 

Currently, patents for computer-implemented inventions
are granted by the European Patent Office (EPO), but are
not enforceable in all Member States because of diverging
legislation. The Commission argues that the directive
would provide more certainty for businesses, encouraging
them to innovate and profit from their work. At the same
time, it said its objective was to avoid stifling
competition in the internal market and to favour small
businesses.

To achieve this, the Commission argued patents should
be awarded only to inventions "which make a
'technical contribution'- in other words which
contribute to the "state of the art" in the
technical field concerned". Computer programmes as
such, it said, would not fall under the proposal.

  • The EU Council of ministers will vote on the
    directive on 18 May
  • The Parliament will examine the text for a second
    reading after the June elections, probably under the
    Dutch presidency

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