The Software Patent Directive has been withdrawn from the Agenda of the Council of Agriculture and Fisheries. Poland's Minister of Science and Informatisation, Wlodzimierz Marcinski, firmly requested the item be withdrawn from the agenda. The Fisheries Commissioner expressed regret, but the A-item was deleted and will not now be adopted this year.
Few people had expected the appearance of the Polish Under-secretary of State in the Ministry of Science and Information Technology, Wlodzimierz Marcinski. Marcinski came personally to Brussels to present Poland's point of view, because the permanent representatives of Poland at the EU had been put under great pressure by the Dutch Presidency to accept the text, rather than to communicate the wishes of the Polish government.
After having been targeted by a demo campaign, Germany's minister of agriculture, Renate Künast of the Green Party, stayed away from the meeting. Instead a diplomat from the German representation in Brussels was sent with instructions to nod off the text. This openly showed a rift within the government. Meanwhile the German minister of justice hinted a possible will to make concessions and renegotiate the Council Agreement. Her ministry had, in spite of unanimous cricicism from all parties in the parliament, tried to push the agreement through today.
It is not yet clear what will happen next. With luck, the Luxembourg presidency will take a less dogmatic line, and allow the text to be reconsidered. However, it is not impossible that today's text could resurface again as an "uncontroversial" A-item in the Agricultural Council on the 10th of January, in the Economics and Finance Council of the 18th, or in the Competitiveness Council in March.
FFII UK Press Release
Tuesday 21 December -- FFII welcomes the decision of Poland to remove the A-item adopting the Directive' COM 2002/0047 (COD) "On the Patentability of Computer-Implemented Inventions" (Software Patent Directive) from the agenda of today's meeting.
The fact that the unilateral declarations of concerns by member states contained more text than the actual directive itself, only accentuated the proposed text's woeful lack of support and lack of democratic legitimacy.
National governments were misled into believing they were getting a Directive which allowed patents only for computer-controlled technical devices. Instead, most patent professionals believe the proposed text would have forced Member States to uphold the furthest reaches of current EPO practice -- so that, in the words, of patent agent (nowadays called attorneys commonly) Simon Davies "all inventions that might reasonably be considered as within the realm of computer science, for example procedures at the operating system level to improve machine operation, or generic algorithms, techniques and functionality at the application level" would be patentable.
Even the UK Government, one of the strongest supporters of the proposed text, admitted that "Clarity will only come from the first test case in a European court.
FFII hopes that, inspired by today's developments, the Council of Ministers will now go back and thoroughly revise the text, to make it quite clear what they do and what they do not want to see patented. This should be clearly written into the legislation, not left for the courts to decide.
- "The so-called political "agreement" from May degenerated into all-out political arm-twisting to drive through a text it became clear had less and less support. The Dutch minister Brinkhorst piled on all the pressure he could, trying to save face and sustain the unsustainable, only to end up in a situation where he has come out worse than anyone else in this farce. Instead, it seems it has taken Poland to say 'Stop. This agreement is just not ready yet'".
Today, Poland saved European democracy and did a tremendous service to the European IT-sector. Thanks to them, the will of the Dutch and German national parliaments can be respected in a future vote. The losers today are not the proponents of software patents. Today, everyone won, except for those who did everything in their power to push through this outdated agreement.
Jacob Hallén, Chairman of the Board of AB Strakt, a Swedish software company with 20 employees, and Vice-President of FFII Sweden, comments:
I would like to thank the Polish representatives to the meeting of the Council for their request to remove the A-item adopting the Directive' COM 2002/0047 (COD) "On the Patentability of Computer-Implemented Inventions" (Software Patent Directive) from the agenda of todays meeting.
By their clearsighted action, Poland has strengthened the democracy of the European Union. An attempt to muscle through a bad directive with very questionable support has been thwarted. We now have a chance to build a process which results in a directive on Software Patents that has wide popular support and one which takes into consideration the views and needs of the new members of the union, as well as the old ones.
André Rebentisch comments:
Very good news. It would mean that the Luxembourg presidency will take it over and the Parliaments will get more time.
As Hans Christian Andersen described:
- But among the crowds a little child suddenly gasped out, "But he hasn't got anything on." And the people began to whisper to one another what the child had said. "He hasn't got anything on." "There's a little child saying he hasn't got anything on." Till everyone was saying, "But he hasn't got anything on." The Emperor himself had the uncomfortable feeling that what they were whispering was only too true. "But I will have to go through with the procession," he said to himself. So he drew himself up and walked boldly on holding his head higher than before, and the courtiers held on to the train that wasn't there at all.
This was the Council situation after 2004-05-18. They had to go through with the procession. But now it is time to step out of the council deadlock.
Christian Beauprez comments:
The Polish Government have led the way to finding a true compromise. They have seen through the hollow, illogical threats of TRIPS non-compliance and intense diplomatic pressuring and have stated that computer programs, contrary to the belief of patent pushers, do not cease to be programs when they are loaded into a computer. In doing so they have restored respect to the field of software authorship (as indeed have the German Bundestag and the Dutch Tweede Kamer). Poland has drawn a line and has returned this directive debate to what we have always been told it was all about, banning pure software claims that are unfair to authors while allowing genuine inventions as defined by the FFII and patent law tradition. But even more than this, they have brought the fresh air of free thinking democracy into what has been a very musty place indeed up until now.
Gérald Sédrati-Dinet, FFII vice-president and representative in France, adds:
It is appropriate that it was the Polish Undersecretary of State for Science and Information Technology that expressed Poland's position. Most other governments, including the French one, have left this issue to people who were connected to their national Patent Offices. But the software field should not be turned into another Patent Mine Field. After today's twist, a new text should be written to secure informational prosperity and independence in Europe.