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FFII: Patent administrators preempting parliaments in Council

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6 June 2005 - We offer an exclusive first-hand report of the closed 27th May and 3rd June meetings of the Council Working Group on Intellectual Property (Patents). National Parliaments must take action now if they do not want their position to be decided by these patent bureaucrats. This is the European democracy crisis you do not hear anything about.

The second reading of the European Parliament on the software patents directive is still a month away. Afterwards, the Council will have to debate the approved EP amendments in its own second reading. Nevertheless, the "Council working party on intellectual property (patents)", which mainly consists of national patent administrators, is already setting the stage to nullify any potential meaningful outcome from the EP, with no input from national Parliaments.

From the report below it is clear this working group, and by extension the Council, is still not interested in any compromise. Some delegations even mention the potential use of meaningless or even confusing (but non-limiting) amendments for "negotiation situations" with the EP. This is not surprising given that they have for two years been failing to respond to the European Parliament's objections to software patentability and instead produced a deceptive paper which was adopted by the Council in March of this year.

The European Parliament has only two choices if it wants to have some say in the rest of the process. The first possibility is approval of all key amendments which limit the scope of the directive. Just one of those may be enough to reach Conciliation (the official discussion between the EP, Council and Commission after the Council's second reading), but is insufficient for a strong negotiation position. If Parliament wants to continue the procedure, without such a steadfast position it could just as well save time by simply approving the current Council text.

The second possibility is outright rejection. The Commission refused a restart without explanation. The Council is being run by lackeys of the patent establishment and undermining people's belief in European democracy at a time where the reverse is urgently needed. Specialists before the EP's Legal Affairs Committee testified that the Commission and Council texts are a juridical mess.

"Turning sulphuric acid into wine is not the EP's job", commented Jonas Maebe, FFII Board Member. "On the other hand, sticking to their first reading stance would also send a strong signal to the Council. Whichever of these ways they choose to follow, we will support them."

Detailed report of the meetings

At the June 3rd meeting two plans were discussed, both of which are already being executed. Plan A is simply what we are already seeing today: lobbyists with huge budgets at their disposal are attempting to dissuade !MEPs from approving any meaningful amendments. Tactics range from spreading misleading statements about venture capital investments to handing out "free icecream ![to] support the Computer Implemented Inventions Common Position".

In the mean time Plan B is being prepared by the Council working group, in case the lobbyists should fail. If the European Parliament does strongly amend the directive in second reading, the Commission and Council will have to change the Council text that was pushed through on March 7th if they want the directive to come through in the end.

They are therefore exploring the opinions of the patent administrators of the Member States on this topic, as they generally decide about government policy on this topic as well. They are also the same people who run the European Patent Office in their function of representatives on its Administrative Council.

Germany: Hardcore opposition to Bundestag motion

From the full report of the May 27th meeting, it is clear that Germany is taking a hardcore stance and completely ignoring the motion approved by its parliament. They think that any change proposed by the JURI Committee to the Council text is unacceptable, except for some cosmetic amendments tabled by Lehne MEP (EPP). Mr Lehne's situation is notable in itself, since he is also ignoring the position of his national colleagues.

The Netherlands: Taking position before promised Parliament consultation

The Netherlands' representatives similarly rejected most JURI amendments on May 27th, although State Secretary Van Gennip had promised the Parliament they would not take a position before the Parliament had been consulted. On June 3rd they only mentioned that a position paper had been presented to the Dutch Parliament, but at the previous meeting they even expressed doubts about minor amendments such as changing the title from talking about "computer-implemented inventions" into "computer-assisted inventions", because according to them it would change the scope of the directive.

At least they confirm with that statement that the Council text is not only about anti-lock braking systems after all.

Poland resisting almost alone; Spain, Italy and Austria backing off

Poland is at this time the only country which is consistently supporting the EP's rapporteur, Michel Rocard MEP. It did get some hesitant support from Denmark and Slovakia, as well as France in some cases.

Spain, Italy and Austria were clearly giving up during the June 3rd meeting however. Austria was following Germany. Italy even started to help inventing fake compromises, such as putting all alternatives for the term "computer-implemented invention" together into the definition articles. Spain did support a few amendments tabled by Ortega MEP, but those are a mixed bag. It is definitely not following the motion passed by its Parliament last February.

Other countries and the Commission

Hungary is, just like Germany, a categoric opponent of any amendments to the Council text. On May 27th they claimed their experts went already through all amendments and that none of the rapporteur's amendments were acceptable, even though the Hungarian government's report on said amendments will only be finished on June 6th.

The Commission is, perhaps surprisingly, more flexible than most of the Eastern-European contingent (apart from Poland and Slovakia) and Scandinavia (apart from Denmark). They seem to be prepared to drop patent claims on computer programs on their own (so-called "program claims").

Belgium did not yet take a firm position. Luxembourg neither, except that they support an interoperability clause. Malta is for unlimited patentability, but with a proper interoperability exemption. The UK, Ireland, Portugal and Czech Republic only can accept some cosmetic amendments here and there.

The UK also referred to the results of the workshops it held on defining the term "technical contribution". It mentioned some criticism from attendees on the usage of forces of nature to limit patentability, but unsurprisingly failed to note the characterising remark about the Council definition that lawyers would "be able to drive a bus through it".

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