National governments of the European Union are heading for a collision with the European parliament over the shape of a proposed law on software patentability when they meet in Brussels this week.
A new version of the law drawn up by the Irish government, which now holds the six-month rotating presidency of the EU, has discarded almost all the amendments made by the parliament last September, according to EU officials and lobbyists who oppose any form of patent protection for software.
Government ministers are expected to rubber stamp the Irish proposal at a meeting tomorrow.
The version of the law that was agreed to by the European parliament was hailed by anti-patent lobbyists, who said that it would, effectively, put a stop to the patenting of software.
In contrast, the Irish proposal looks very similar to the original text drafted by the proposed law's authors at the commission, said European Commission spokesman Jonathan Todd.
"The whole point of this directive is to introduce order regarding the patenting of inventions related to computers."
In response to the criticism this proposed directive has received from software patent opponents, Todd insisted that if passed in the shape proposed by the Irish government, "it would not allow software patents as such".
However, he admitted that the issue is controversial, with pro-patent groups arguing that patents are vital to ensure innovation, and anti-patent advocates insisting that the exact opposite is true.
Todd said the original commission proposal and the Irish proposal "already represent a fair balance between these two opposing views".
However, many software developers remain unconvinced, and some members of the European parliament claim their institution is in danger of being sidelined by the position taken by the Irish government.
"The new text proposes to discard all the amendments from the European parliament which would limit patentability," said the Foundation for a Free Information Infrastructure (FFII).
The FFII has led the anti-patenting lobby ever since the commission first proposed the directive in 2001.
It added that the Irish proposal is even worse than the original text proposed by the commission. "The lax language of the original commission proposal is to be reinstated in its entirety, with direct patentability of computer programs, data structures and process descriptions added as icing on the cake," it said.
It described the latest version of the draft law as "the most uncompromisingly pro-patent text yet".
Piia-Noora Kauppi, Finnish member of parliament of the centre-right European People's Party, expressed dismay at the council of national government ministers' position. "It seems that the council is not taking the will of Europe's elected legislators into account," she said.
Johanna Boogerd-Quaak, a Dutch member of the European Liberal, Democrat and Reform Party, accused the council of protecting the interests of large American corporations.
"I'm under the impression that the Irish presidency has buckled under the interests of American companies," she said, adding that "a handful of big American companies may actually profit from software patents, but it is a very bad deal for innovation in European SMEs."
The chances of a compromise between the European parliament and the council appear remote. If they cannot agree on a text then the proposal is scrapped. But far from being a victory for the anti-patent lobby, this outcome would be the worst possible scenario, said one person familiar with patent laws, who asked not to be named.
"If this directive is scrapped it would be a Pyrrhic victory for the opponents of software patents, because the status quo is even worse than what the council is proposing," he said.
At present, the Munich-based European Patent Office registers patents that can be protected in each member state of the EU by national patent offices. It is permitting more and more patents for inventions that rely on software code, this person said.
"If the status quo continues, the EU will have a patent regime as lax as the one in the US and Japan," he added.
Paul Meller writes for IDG News Service