The European Council has approved a controversial draft
directive which will open the way for the patenting of software in
Europe if approved by the European Parliament this
autumn.
The directive passed by a narrow margin, with 27 of the 37 votes
needed to block the proposal being exercised. Critics say the draft
of "Patentability of computer-implemented inventions", known as the
software patents directive, contains wording which would allow
large companies to build up software patent arsenals and lock out
smaller companies.
Council members approved the draft with Belgium, Italy and
Austria abstaining and Spain voting against. The vote was
effectively decided by the support of Germany, which had earlier
opposed the text, but was apparently persuaded by a minor
compromise in the text's wording.
The text approved by the Council is nearly identical to a
version debated by the European Parliament last year, which
provoked vehement opposition from economists, software developers,
computer scientists, small and medium-sized businesses and some
large companies such as Bull.
Their arguments convinced MEPs to modify the original proposal
heavily to ensure that computer programs could not be patented.
These modifications proved so controversial with the European
Commission that the directive was sent back for redrafting by an
independent body consisting largely of member states' civil
servants, including officials from national patent offices.
The text produced at the end of this process, however, in effect
removed the MEPs' modifications, enraging those who had sought to
place limits on the directive.
"Their [the commission and the council] convoluted and
misleading Patent Newspeak, negotiated in intransparent backroom
dealings, is an insult to the European Parliament, the European
Economic and Social Committee, the Committee of Regions and the
innumerable experts and stakeholders who have engaged in serious
investigations on this directive project with us," said Danish MEP
Pernille Frahm.
The directive's stated purpose is to harmonise patent
regulations for computer-related inventions across the EU, while
steering the EU away from a US-style patent free-for-all, but
critics within the European Parliament said the commission and the
council seem to be ignoring those aims in favour of the interests
of large companies' patent departments.
"If [the Council] don't get what they want, they simply bury
the directive project and try to find other ways to get around the
existing law, whose clarity is so painful to them," stated Daniel
Cohn-Bendit, chairman of the Greens/EFA Group.
Opponents of the proposed directive argue that because critical
terms are left undefined, the text does not make clear what may or
may not be patented. Many companies are already taking out European
patents for computer programs, although this is explicitly
prohibited by the European Patent Convention of 1973; the vagueness
of the directive would effectively make these software patents
legitimate, critics argue.
One key term is "technical". Inventions that make a technical
contribution are patentable, and those that do no't are not. A
revision of the council's text, proposed by Germany, would have
added a more precise interpretation of "technical" as "the use of
natural forces to control physical effects beyond the digital
representation of information", while making it clear that "the
mere processing, handling, and presentation of information do not
belong to a technical field".
A compromise with the council erased these amendments, adding
only that the technical contribution made by an invention must be
"new", on top of the existing provision that it must not be
"obvious". This was enough to convince Germany to back the
text.
"The text that has gone through the council is, in legal effect,
identical to what the Irish [holders of the council presidency]
were originally proposing, which had raised a storm of protest
across Europe," said James Heald, spokesman for the civil rights
group Foundation for a Free Information Infrastructure (FFII). "The
changes were cosmetic, but they were enough to fool ministers."
The group successfully galvanised the community of software
developers against the parliament's earlier version of the
directive, and is now planning protests in Barcelona on 29 May. The
FFII is also sponsoring a free lecture by Free Software developer
Richard Stallman on the dangers of software patents for Friday
evening at the University College of London.
The directive can still be altered when it goes to the European
Parliament for a second reading this autumn, but two factors could
make changes more difficult than at the first reading last autumn,
according to FFII.
One is the presence of MEPs from new EU member states, whose
stand on the issue remains unknown. The other is that any changes
will require the approval of a more significant majority of MEPs.
On a second reading, changes must be approved by an absolute
majority of all MEPs, whether they are present or not; in practice
this could require a two-to-one or three-to-one majority, Heald
said.
Those wishing to make their interests known to MEPs will need to
act now, with European parliament elections coming in the middle of
June, Heald said: "Election time is the one time MEPs do listen to
voters."
In countries such as the US, which have permissive patent laws,
large businesses stockpile patents largely to protect themselves
from litigation by other large companies with large patent
portfolios; conflicts usually result in a cross-licensing
agreement. This system works against companies that do not have
large patent holdings or cannot afford to engage in litigation with
bigger competitors. It is also a drain on bigger companies.
In a 2002 statement to a US Federal Trade Commission hearing on
patent reform, Robert Barr, head of Cisco Systems' patent
department, said: "The only rational response to the large number
of patents in our field is to contribute to it. The time and money
we spend on patent filings, prosecution, and maintenance,
litigation and licensing could be better spent on product
development and research leading to more innovation."
However, other big technology companies see patent stockpiling
as a useful way of controlling the intellectual property
environment they operate in, and it is these companies that are
putting pressure on the commission and the council to implement
software patents, experts claimed.
Last November, for example, the chief executive officers of
Alcatel, Ericsson, Nokia and Siemens signed a letter sent to the
commission and the council issuing a warning of the dire
consequences of allowing MEPs to carry out the will of voters. The
companies said their research investments of €15bn a year were
placed at risk by the MEPs' amendments to the software patents
directive.
"The loss of effective patent protection would put our companies
at a competitive disadvantage in the short term, and in the longer
term reduce the incentive for further investment in R&D in
Europe," the letter said. "Overall there will be less
software-related innovation in Europe."
Matthew Broersma writes for
Techworld.com