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The EUs controversial proposal on patenting “computer-implemented inventions” has unexpectedly cleared a major hurdle, with the Council of the European Union set to give its approval early next week, officials have confirmed.
In a technical fluke, it will fall to a meeting of either the Environment or the Agriculture and Fisheries councils—the only meetings left this year—to adopt the proposal as the Common Position of the Council.
“At a Council meeting early next week, the text will be adopted as the Common Position,” said Dr. Jeremy Philpott, a spokesperson for the U.K. Patent Office. “It will be adopted or it will fall off the agenda. There is no opportunity to debate it—the substantive debate happened back in May.”
The move was applauded by the European Information and Communications Technology Industry Association, which counts dozens of multinational technology companies as members. “This was really the only good outcome possible,” said spokesperson Leo Baumann. “It would really have been a disaster if the Council had decided not to adopt the Common Position now. Europes highly innovative technology industry … deserves clarity.”
Critics said the adoption of the proposal would be a blow to Europes software industry and to the democratic process. “The EU Council and Commission are now poised to adopt as their Common Position a piece of unreasoned mumbo jumbo, which, as everybody knows, does not enjoy support of a qualified majority even in the Council itself,” said Hartmut Pilch, of the Foundation for a Free Information Infrastructure, in a statement.
The proposed Directive on the Patentability of Computer-Implemented Inventions has a long history, but as it has grown closer to completion it has been the subject of increasingly charged debate. 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. 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.
Critics such as Linus Torvalds say software patents, as allowed by the current text, would lock out smaller competitors and launch a patents arms race, as is already the case in the United States.
Last year, such arguments convinced MEPs (members of the European Parliament) to make substantial changes to the proposal, effectively limiting its scope and explicitly blocking patents on software. The changes were later thrown out by the EU Council, which approved the current draft in May of this year.
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The text was scheduled for a routine rubber-stamp approval as an “A” item, but this fall the process seemed likely to be derailed due to technical changes in the voting powers of member states within the Council.
In May, EU Council members supported the proposal by 89 votes, one more than the 88 needed for a qualified majority. If the Competitiveness Council had officially backed the proposal during the next five months, it would have gone through without a vote—and without a controversy..
However, a delay in translating the needed documents pushed the Competitiveness Council decision into November. This has made all the difference, because new voting rules that came into effect on 1 November have destroyed the proposals earlier qualified majority, according to No Software Patents campaign manager Florian Mueller. According to his analysis, available on the campaigns Web site (PDF), the proposal now falls 16 votes short of a qualified majority. Poland officially declared it could not support the proposal. “Because of numerous ambiguities and contradictions respecting the current directive project, Poland cannot support the text which was accepted in the vote of the Council on 18 May 2004,” the Polish Council of Ministers said in a statement.
Hungary, Latvia and the Netherlands have made declarations distancing themselves from the text. All of Germanys political parties called for the proposal to be modified to clearly exclude software patents.
Last week Marc Verwilghen, the Belgian minister of economics and energy, even told his countrys Parliament that the text would not be adopted by the Council this year “for the reason that the qualified majority no longer exists.” (His comments can be found on page 14 of this document [PDF].)
However, while countries such as Poland may have had the right to formally derail the process, they did not do so, meaning that the vote will occur as planned, Philpott said. “An awful lot has been spoken by people outside of the procedure, on the way in which one country or another may be thinking of changing its vote,” he said. “We have a perspective from within the procedure, and a lot of that doesnt bear any resemblance to reality. No member state has changed its position.”
It is still possible that agriculture or environment ministers could derail the texts adoption, but observers said this is unlikely. If adopted, the proposal will return next year to the European Parliament for a second reading, but MEPs will find it more difficult than before to make changes, as a larger majority will be needed than in the first reading.
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