The proposed Directive on the Patentability of Computer Implemented Inventions, which addresses the issue of software patents, faced a vote on Tuesday afternoon at a meeting of the EUs Council on Agriculture and Fishery, its last chance for adoption this year. It was expected to be adopted without discussion; a group opposing the proposed directive had already distributed a press release assuming the vote had gone through as planned.
At the meeting, however, a Polish representative to the Council asked for the removal of the proposal from the agenda, and the request was granted, according to those familiar with the situation. The last-minute delay is a significant setback to those wishing to turn the proposal into law and could give opponents an opportunity to make changes.
Last week, backers of the proposal, including representatives of the UK government and the European Information and Communications Technology Industry Association (EICTA), were already applauding the EU Council for adopting the proposal. "It would really have been a disaster if the Council had decided not to adopt the Common Position now," said EICTA spokesman Leo Baumann at the time. "Europes highly innovative technology industry ... deserves clarity."
On Tuesday morning, the group NoSoftwarePatents.com even distributed a press release criticizing the EU Council for adopting the proposal. The groups spokesman, Florian Mueller, later told eWEEK.com that Polands move had created "a whole new opportunity" to reopen debate over IT patenting.
Germanys federal minister of justice, Brigitte Zypries, said she hoped the delay would mean an opportunity to bring the current proposal more in line with changes proposed by the European Parliament last year. Those changes were applauded by software developers for definitively ruling out software patents, but were excluded from the current draft.
"We were well aware that [the current proposal] has room for improvement with an eye to the objective of arriving at a consensus position between the EU Council and the European Parliament," Zypries said in a Tuesday statement. "We will continue to work constructively toward finding a solution that even better meets the needs of those concerned than the decision taken in May of this year." Several other EU governments have previously stated they wished to distance themselves from the May agreement.
The proposal could still be adopted at an EU Council meeting next year, or the process of drafting the legislation could begin again from scratch.
Critics such as Linus Torvalds say the current text would bring software patenting into Europe, which would lock smaller competitors out of the software industry and launch a patents arms race, as is already the case in the United States. The text has been opposed by economists, small businesses, software developers and open-source advocates, who say that it legitimizes the patenting of pure software, which has crept into European practice over time.
Advocates of the current text, including the governments of many EU member states and some large corporations, say the proposal is just a clarification of current patent rules across the EU and locks out software patenting.
After a debate in May, the proposal was scheduled for a routine rubber-stamp approval as a so-called "A" item. This fall the process seemed likely to be derailed due to technical changes in the voting powers of member states within the Council. After some diplomatic maneuvering, the proposal was quietly added to the agenda of Tuesdays Council on Agriculture and Fishery, one of the two final EU Council meetings of the year.
Editors Note: This story was updated to include comments from Germanys federal minister of justice, Brigitte Zypries.
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