The EU Council quietly planned to adopt the proposal (termed a Common Position) on Monday, according to sources. But Poland, which intervened to stop a planned vote last month, late this week stepped in again to delay approval, with the result that adoption wont happen until Jan. 31, sources said.
The delay of just one week is enough to give the EP (European Parliament) an opportunity to toss out the text before it goes on to the next stage, after which it would be difficult to make substantial changes.
"This is a very positive move. Given the pressure Poland is under, it is as much as could have been done," said James Heald, a spokesman for the FFII (Foundation for a Free Information Infrastructure), which opposes the current draft.
Those supporting the proposal said any further delay would be a disaster for European enterprises. "Its a pity it has already been delayed for so many months. It means increased uncertainty to companies in the long run," said Leo Baumann, spokesman for EICTA (the European Information and Communications Technology Industry Association). "The industry needs patent protection ... for real inventions that use software."
A U.K. government representative said any radical departure from the current process would be a blow to the foundations of Europes legislative process. "If Common Positions can be routinely unpicked, there is no point in negotiating them," said Dr. Jeremy Philpott, a spokesman for the U.K. Patent Office. Restarting the process would be "disruptive", he said. "There are those in Brussels who would regard it as a dangerous precedent."
To patent or not to patent?
The EU is trying to introduce a directive harmonizing the way patents on "computer-implemented inventions" are handled across the region. But critics say the text currently awaiting adoption by the EU Council would legitimize the patents on pure software that have already been granted by the EPO (European Patent Office), and that its vague enough to open the floodgates to more software patents. Supporters, on the other hand, say the text is clear enough to shut out software patents. Both sides say they want to keep U.S.-style software patents out of Europe.
The current text, opposed by open-source developers, economists and smaller businesses, is backed by many larger enterprises, who say they want the situation to be resolved as quickly as possible. Government bodies looking at implementing open-source software, such as the city of Munich in Germany, want the text to specifically ban software patents.
The EUs patent regime affects companies based elsewhere who want to obtain European versions of patents they already own, according to industry observers. "Companies might say, I got [a patent] from the U.S. PTO [Patent and Trademark Office], why cant I get one in Munich?" said Philpott of the U.K. Patent Office. "There are different criteria in Europe."
The current unenforceability of software patents also gives European software companies a competitive advantage over their U.S. counterparts, all sides agree. U.S. software companies routinely stockpile thousands of patents that are used mainly to defend themselves from patent lawsuits.
European software companies dont need to bother. The lack of software patent warfare also creates a less hostile environment for smaller software developers and open-source projects, which arent in a position to accumulate large patent portfolios.
"It is a competitive advantage for the EU to not have patents on pure software, as long as they are there to protect real inventions," the EICTAs Baumann said.