Dutch press on as the Poles stall over computer patent law

Date: 25/11/04

By Peter Chapman

THE Dutch presidency says it expects a hard-fought deal between member states on a draft law on computer-implemented patents to be approved next month, despite threats from Poland to change its mind.

To the delight of the directive's many opponents, Warsaw has wavered in recent weeks, even though EU competitiveness ministers reached a 'political agreement' on a draft text on 18 May.

A statement circulated by the Polish permanent representation in Brussels indicates that the country is re-examining its tacit support for the deal in May, when the Poles abstained from the vote, helping the Commission to win approval for its law.

Spokeswoman Malgorzata Alterman confirmed that the Polish minister Jaroslaw Pietras had not finished preparing a final position on the draft.

But sources told European Voice that the Polish representative's abstention was an embarrassing mistake.

The delegate was not given clear instructions from Warsaw and so did not know which way to vote. The Polish government later discovered that it actually should have voted against.

But the Dutch presidency spokesman Joop Nijsson said that the Poles were only allowed to tidy up linguistic mistakes made by 'jurist linguists' in the Council of Ministers, whose task is to ensure that legal texts mean the same thing in all languages.

Nijsson said that there was no possibility for governments to make wholesale changes to their May agreement at this stage. That opportunity would fall to MEPs - who must prepare a second reading of the law from December.

He said that it would be a decision agreed without debate at a forthcoming Council meeting. “We have been reading stuff and had lots of informal contacts. But we have not had any formal request from the Poles to change their position,” he said.

The controversial law, proposed last year by the European Commission, has pitted industry groups against software programmers and fans of so-called open source programs.

The open source fraternity claimed the directive would put legal restraints on programmers trying to develop new applications and improve on the current state of the art.

They argue that many of the components they might need to use for new developments would be covered by patents. Ignoring the patents could land them with hefty fines.

Magda Mosiewicz, co-chairwoman of the Polish Greens, said: “I hope other countries will quickly adopt Poland's stance and refuse to vote on the text unless it contains clear limits to the patentability of software and business methods.”

Eva Lichtenberger, an Austrian MEP, said: “The Polish government has taken this important decision after wide consultations with experts - the Polish patent office, Sun Microsystems, Novell, Hewlett-Packard, Microsoft, various patent lawyers and many others. They concluded that the Council's present proposal would make all software potentially patentable.”

Other groups, such as the EICTA - the European Industry Association for Information Systems, Communication Technologies and Consumer Electronics - argue that the directive has necessary safeguards to prevent a plethora of patents.

Mark MacGann, director-general of EICTA, said that the Poles might plunge industry into legal uncertainty if they dropped support for the law.

“Poland has the legal right to change its vote on the political agreement, however unprecedented such a move would be. Industry urges the Polish government not to do this, as the consequences are unclear.

“Either the Commission would withdraw the directive, which would be a severe blow for the harmonized single market that European industry needs in order to be competitive, or else the text would be referred to a Council working group for an unspecified period of time.”

MacGann warns that the latter outcome “would prolong the unacceptable uncertainty surrounding patent protection for the high-tech industry in Europe, and threaten the future of private investment in research and development in the member states”.

The Dutch Presidency of the European Union said it expects a hard-fought deal between Member States on a draft law on computer-implemented patents to be approved in December 2004, despite threats from Poland to change its mind. The country abstained in the decisive vote and is reviewing its stance.