Ministers set to double-click on software patents directive

By Anna McLauchlin

Date: 20/01/05

Controversial rules allowing companies to patent software could be approved by the Council of Ministers on Monday (24 January), European Voice has learned.

Poland, which stymied an original vote on the law in December, has come under pressure to back the common position agreed in May last year.

The directive was to be adopted in December without debate, but it was pulled from the agenda after Poland said that it needed more time to study the text and ensure that it would not allow software to be patented.

Sources close to the negotiations say that other states have since put pressure on Warsaw to stick to the original common position agreed on 18 May by all member states except Spain, who opposed the directive, and Austria, Italy and Belgium who abstained from the vote.

It is the first time that the Council has found itself in this position. According to one diplomat, some delegations threatened to bring the matter up at the March European Council if Poland did not let the matter drop, claiming that it was disingenuous for a member state to change its mind after it had already backed a common position.

"It's a matter of accountability," he said. "We need to be able to trust decisions taken by the Council and that can only happen if people stick to the procedure."

Other sources say that the Poles have indicated that they will not block the directive if it is again put on the agenda at the Council, but will add a statement expressing their concerns.

A Polish official refused to confirm this, saying: "The interests of our small and medium enterprises are important to our government and we would like to take our time to analyse the proposal once more."

On 13 January, 42 Green MEPs asked Parliament's legal committee to restart the legal procedure, claiming that the situation in the Council was so "confused" that MEPs should be allowed to go back to first reading.

A spokesman said that no decision was planned. The European Commission is not obliged to agree to the request. Under the rules if the common position is approved on Monday, the Parliament is expected to start its second reading and conclude within three months or the Council's position will be deemed adopted.

Critics have attacked member states for rejecting the Parliament's original amendments that would have prevented all software from being patented. Instead the Council text will allow any computer program which has a use, such as a system allowing a car to brake, to be patented.

Erik Josefsson from The Foundation for a Free Information Infrastructure (FFII), says the law would force smaller firms out of business as big multinationals demand huge licensing fees for the use of basic technology. He uses the example of Amazon, the online bookshop which has a European patent for online 'one click shopping'.

But Leo Baumann from technology association EICTA said: "The Parliament's first draft would have killed the patent system in this area," he said.

Around 30,000 patents have already been issued on software by the European Patent Office but until this legislation is approved they will not have a legal basis.

Author says that controversial rules allowing companies to patent software could be approved by the Council of Ministers on 24 January 2005. It had originally been planned to adopt the directive in December 2004 without debate, but it was pulled from the agenda after Poland said that it needed more time to study the text and ensure that it would not allow software to be patented.