Patent law precedent risky for EU system

By Anna McLauchlin

Date: 17/02/05

The EU's Council of Ministers has warned of a dangerous political precedent being set in the latest row over the directive on the patentability of computer-implemented inventions. The EU's decision-making system is threatened with "collapse" if member states can change their mind on previous agreements, an official warned.

Josep Borrell, the president of the European Parliament, is expected to ask the Commission to re-submit its initial proposal once the assembly's political chiefs have given him his mandate today (17 February).

On 2 February the Parliament's legal affairs committee voted almost unanimously in favour of asking the Commission to return the proposal to first reading. They were entitled to do this on the grounds that Parliamentary elections took place in June, after the first reading position had taken place, and in light of considerable opposition to the draft text.

At the Council, adoption of the common position, reached in May last year, has now been delayed three times. Poland twice delayed the vote in order to issue a declaration detailing its objections to the text's impact on small businesses. Then the Luxembourg presidency decided to remove the item from today's Council agenda out of respect for the Parliament's expected request.

If the Commission were to agree to the Parliament's request, it would give the Council a legal headache. Not only has Poland reneged on the common position, it has also effectively vetoed the position by refusing to allow it to be voted upon formally. According to the Council's rules, while only a qualified majority is needed to adopt a common position, unanimity is needed for the position to be put on the agenda as an 'A' point for formal adoption.

"It is a very dangerous precedent," a senior official said. "It is a big political problem. When member states have given their agreement to a political compromise, they cannot change their mind while the text is being translated and being prepared to be signed. This is an important principle of loyal co-operation. If this is not respected, the EU decision-making system collapses."

Council officials say that no member state has ever tried to block a decision to which it subscribed, either explicitly or tacitly, beforehand. "We have never broken a political agreement reached at ministers' level," says one.

According to sources, the Commission is now considering withdrawing the proposal and taking a "time-out" before drafting a new text. A Commission spokesman would not confirm this but said that the situation would be clearer following the Parliament's decision.

Initially unwilling to start the procedure from scratch, the Commission is aware that there is now no weighted majority supporting the common position reached last May. As well as Poland's change of heart, Spain, the Netherlands, Latvia, Slovenia and Slovakia have all expressed doubts about the text.

Those close to the situation say that the unprecedented legal and political chaos surrounding the directive has been caused by fierce lobbying. Large software companies have pushed for the law to be adopted - Danish press reports even suggest some have held the directive ransom against jobs - while those opposed to it, ostensibly from smaller creators, have said that any form of patent would stifle innovation.

According to one EU diplomat, part of the reason that the Commission is beginning to consider withdrawing the law is that the pro-patent lobby has begun to back off.

"Some of those that were pushing hard for the proposal are realising that the ones who will lose out if this is dropped are those who wanted to limit patents," he said.

After Poland had twice delayed a decision to be taken in the Council of the European Union on a Directive on the patentability of computer-implemented inventions, thus withdrawing its previous consent, a Council official warned of a dangerous political precedent being set, saying that the EU's decision-making system was threatened with 'collapse' if member states were able to change their mind on previous agreements. On 18 February 2005 the European Parliament's Conference of Presidents in a rare move used its right to send the draft directive back to the European Commission. This had followed the previous turn-down of the proposal by MEPs in the legal affairs committee.