Council trying to derail Parliament's Second Reading

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4 June 2005 -- In view of efforts by leading members of the European Parliament to reinstate strict limits on patentability, the ministerial patent officials who control patent policies in the EU Council are pressing the Parliament to refrain from stating its position and instead accept a hasty "compromise", so that software patentability can be rubberstamped by both institutions together without further negotiations, right after the Parliament's vote in July.

According to information available to the FFII, the administrators of the European Patent Office are secretly preparing to interfere in the European Parliament's Second Reading on software patentability.

The Council's "Working Party on Intellectual Property (Patents)" consists of the very ministerial patent officials who run the European Patent Office and national patent office. This group met on Friday the 3rd of June in Brussels in order to prepare a position paper on the European Parliament's planned amendments.

The Council's ministerial patent officials 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 against the Council's rules of procedure and without a qualified majority.

The strategy of the ministerial patent officials was thus to push their old approach through a new Parliament under tightened time constraints and heightened majority requirements. The Parliament had only 3 months to come to a counter-position which must be supported by an absolute majority of component members. I.e. absent members count as pro-Council. The only chance for keeping negotiations open is for the Parliament to reaffirm the position of its first reading on July 6th 2005. Before this, the Legal Affairs Committee must vote. This vote is scheduled for June 21st.

The Council presidency now suddenly believes that this schedule is not yet tight enough. The conclusion of a meeting of Council diplomats in late May was that a compromise with the Parliament must be reached within the Parliament's second reading, before the Parliament has a chance to form its own position. According to reports from the meeting which have been leaked to FFII from various ministerial sources, the Council wants to reach a quick consensus and avoid a conciliation procedure.

Various delegations, including those from Sweden, Germany and the Netherlands, have already signalled that they can not accept any substantial amendments. E.g. for the German delegation, a definition of "technology" by "forces of nature" is unacceptable and program claims are essential. Only cosmetic amendments such as those of Klaus-Heiner Lehne are acceptable to them.

As usually, the patent officials disregard the resolutions that were passed by their respective parliaments. The negotiations are secret, and usually the positions of individual countries are not published.

The "Intellectual Property Working Party" has convened on Friday the 3rd and is expected to present a conclusion to the European Parliament on the 14th, just one week before the Parliament's committee votes.

Hartmut Pilch of FFII expects: "The discourse of many Committee members will then be strongly influenced by "political" considerations, with "realism" and "compromise" being the buzzwords and the achievement of a clear and adequate law becoming a secondary objective at best."

In the concluding conversation with EPP shadow rapporteur Piia-Noora Kauppi MEP at the FFII's conference on Wednesday, Pilch said the Council is hastily meeting because, as realists, they are afraid of the enormous force of a clear counter-position from the European Parliament, and therefore are trying to derail the process. "Realistically speaking, truth is a strong weapon. So let's use it", Pilch concluded.

Moments of truth will have to happen in some national parliaments next week.

You can find a fairly detailed account of the meeting of 27th of May in a separate report.

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