Council adopts bad position on software patents

Tuesday 18 May the Council of the European Union adopted by a qualified majority in its Competitiveness meeting a Common position for the Second Reading of the Software Patent Directive. The text is described by the Foundation for a free Information Infrastructure as ‘the most uncompromisingly pro-patent text yet’. The Common Position, which was agreed upon by the 25 Member States’ ministers in charge of Internal Market, Industry and Research, largely ignores a vote in the European Parliament last September to restrict patentability in a way that would have been in line with the European patent Convention and effectively rejected patentability of actual software.

The text that the Council has voted for is regarded by many experts as being even worse than the initial Commission proposal, to which it adds direct patentability of computer programs, data structures and process descriptions. This extension of the focus seems to be the result of a shift in the internal balance of powers within the European Commission. The DG Internal Market, led by Dutch Frits Bolkestein and strongly in favour of software patents, increasingly prevails over DG Information Society, led by Erki Liikanen from Finland and mostly sceptical about software patents.

In Tuesday’s Council meeting, only Spain voted against the Draft Common Position; Austria, Italy and Belgium abstained. Before the decision, there had been rumours that more big member states such as Germany or France might vote against the proposal. That would have threatened the qualified majority who now adopted the position. The rumours about Germany were based on the words of Elmar Hucko, Ministerial Director in the Federal Department of Justice. A week ago, he told a demonstration of anti software patent activists in Berlin that the German government felt ‘in substance closest to you’ and that it wanted “under no circumstances American conditions in Europe… A patent must be a fair reward for a bona fide invention and not abused as a strategy to bludgeon competitors.” However, the German Minister for the Environment, Juergen Trittin (Green Party), who represented his government, voted in favour of the Common Position.

The European Parliament is expected to debate the proposition in Second Reading, starting in September in the Legal Affairs Committee. The rapporteur will most likely again be Arlene McCarthy (PSE, UK), who took a pro-software patent position already in First Reading. The Council Common Position is neither binding nor the basis for amendments, but approximating their vote to the Council’s would increase MEPs’ chances to avoid a Third Reading, which would possibly be followed by a Conciliation Procedure.

FFII: EU Council Plans to Scrap Parliamentary Vote without Discussion (07.05.2004) http://swpat.ffii.org/news/04/cons0507/index.en.html

Provisional minutes of Competitiveness Council (18.05.2004) http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/intm/80522.pdf

Groklaw: German Politician Says Germany Will Vote Against Software Patents (13.05.2005) http://www.groklaw.net/article.php?story=20040513125154288

(Contribution by Andreas Dietl, EDRI EU affairs director)