A fresh round of behind-the-scenes maneuvering around the European Unions efforts to pass IT patent legislation has left the European Parliament with a narrow window of opportunity to scrap the current, highly controversial text and start over from scratch, according to sources.
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.
The furor around the proposed directive has excited the kind of intense debate rarely associated with the EU legislative process, which more often concerns itself with regulating supermarket labels and fruit trade specifications.
When the directive was passing through the European Parliament in 2003, open-source activists, among others, successfully lobbied MEPs (members of the European Parliament) to add a number of restrictions to the draft, designed to make sure software patents wouldnt slip in.
Most of these restrictions were later removed by the EU Council, resulting in the current text, adopted as the councils Common Position in May of last year.
Ordinarily, a Common Position that has been agreed upon is adopted without further debate. But changes in voting rules within the EU Council gave new EU member states, such as Poland, an opportunity to challenge the Common Position before its adoption.
Poland now seems likely to allow the adoption of the Common Position to go ahead, and to simply register its reservations about the text. However, in twice delaying adoption, Poland has given parliamentarians a chance to make a decisive difference.
If adoption were to take place Monday, the text would be accepted by the EP during a plenary session on Jan. 25 and 26. The EP wouldnt have an opportunity to scrap the proposal and start over, because the EP committee involved, the legal affairs committee (JURI), doesnt have its first meeting of the year until early February.
If the adoption takes place Jan. 31, as sources now say it will, it will not go to an EP plenary session until the end of February. That means JURI would have an opportunity to decide what to do next—it could allow the text to go through to a second reading in Parliament, or it could begin the entire process again. It is more difficult to change a text in a second reading than a first reading, because more substantial majorities are needed.
Earlier this month, a group of 61 MEPs said they would support efforts to begin the process anew.
Florian Mueller, head of the NoSoftwarePatents campaign, said if the process does begin again, it would most likely benefit those seeking more protection against software patents.
“Given how the positions of various countries have changed, a Common Position of the council would never again provide for such broad patentability as the text of May 18, 2004,” he said.
Mueller noted that the city of Munich has been advised to require legal indemnity from its software suppliers in order to mitigate the patent threat, a requirement that would lock out smaller suppliers.
In the United States, software patents may pose a significant risk to open-source projects such as Linux. An insurance firm last year calculated that Linux is affected by nearly 300 approved patents.
Individual companies are making efforts to protect open-source developers. Earlier this month, IBM donated 500 patents to open-source projects in a show of support for U.S. developer efforts.
Suns process of open-sourcing Solaris may convey a large number of the companys patents to the open-source community, a source said this week.
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