2004-05-19 EU Council of Ministers reverses Parliament amendments to software patents directive
DRAFT - DO NOT RELEASE
Yesterday in Brussels the Council of Ministers of the European Union debated a proposal on the patentability of software, which had provoked considerable controversy when it had been presented for its first reading at the European Parliament, because of its potential collision with copyright law and because of its potentially harmful effects on the economic health of european software business and on the information society in general.
After 45 minutes of debate, 10 minutes of non-public negotiations, and 13 minutes of summary, the Council voted to approve a text proposed by the Irish Presidency, with a few meaningless amendments. The text, seen by campaigners as uncompromisingly pro-patent, puts the Council in clear confrontation with the view of the Directive adopted by the European Parliament. The Council proposal not only removes all of the clarifying and limiting amendments from the Parliament, but also adds new features such as 'program claims', which openly contradict the non-patentability of software laid down in article 52 of the European Patent Convention.
Several days earlier, the German government had promised to oppose the Irish proposal or at least to abstain. It had built itself as the leader of the opposition against the Irish text. However, a "compromise" proposed by the Commission was apparently enough to bring round the German delegation, which was followed by Poland and Latvia. Although apparently enough to convince ministers, the amendments have only cosmetic effects, and the text remains as uncompromisingly pro-patent as the original Irish draft.
Commissioner Frits Bolkestein insisted during the debate that "software as such" would be excluded by the Irish proposal. At the same time, it becomes however possible to patent "software executed by a computer" under most circumstances, which amounts to the same thing in practice. At the press conference later that day, Bolkestein could not provide any example of a software patent that would be excluded based on the text that had been approved.
Florian Mueller, adviser to the CEO of !MySQL AB, views the decision with concern: "The directive proposed by the EU Council would effectively make software patentable. I have seen enough examples of software algorithms which were deemed by patent examiners to have `technical effect' and thus be patentable. We strongly hope that this legislative process will take a positive turn in its subsequent stage and spare our industry the anti-competitive implications of software patents."
The Council is now expected to officially adopt the text without discussion in a later meeting. After that, the proposal faces a second reading in the European Parliament this autumn. The newly elected Parliament may insist on reinstating the limiting amendments which it added at the Directive's first reading, and which were rejected by the Council today. But at second reading this is only possible by absolute majority of all the elected !MEPs -- in practice a 2:1 or 3:1 vote of !MEPs actually present.
If the Parliament does not sustain its amendments, the Directive will confirm the legality of patents on computerised methods in Europe, including business methods such as the Amazon gift ordering patent.
