2004-12-03 EU Council Presidency Publishes Multilingual Software Patent Rationale Document
The Council seems to be working under high pressure to prepare materials in order to adopt the Software Patent Agreement of 2004-05-18 as a Common Position before the end of term of the Dutch Presidency this year.
Council Reasoning -- A draft document that explains the reasoning of the council on the software patent directive, this appeared a few days ago in English and has been translated to 20 languages
Added documents -- Look for all those "ADD 1" entries in the list.
Quotes from the Reasoning
- As already mentioned, paragraph 3 of Article 4 of the Commission proposal has been incorporated in the definition of "technical contribution" under Article 2(b), as it was felt that this belongs to the definitions rather than in an Article entitled "Conditions for patentability". Article 5 (Form of claims) [...] Paragraph 2 was added in order to clarify that in certain circumstances and under strict conditions a patent can cover a claim to a computer program, be it on its own or on a carrier. The Council considers that this would align the Directive on standard current practice both at the European Patent Office and in Member States. Article 6 (Relationship with Directive 91/250/EEC) [...] The Council did not take on board European Parliament's amendment 76, considering that this was too open-ended and would be contrary to the TRIPS Agreement. The Council considered that the interoperability issue is already sufficiently covered by Article 6, as well as by the application of general competition rules. This is clearly explained in recitals 21 and 22 of the Council's common position. CONCLUSIONS
- In its common position, the Council has taken over a considerable number of amendments proposed by the European Parliament. Throughout the common position, the Council has sought to strike a reasonable and workable balance between the interests of rightholders and those of other parties concerned. The overall balance of the Council?s common position has been acknowledged by the Commission, which has accepted it as a satisfactory compromise package.
Explanatory documents can have quite an influence on what a legal text means. This is all the more so in the case of opaque "agreements" where the packaging differs from the content. In such cases an explanatory document could be of great importance for the Parliament's next reading.
One may wonder whether a new document that explains the reasoning behind the Agreement can be transmitted to the Council without a qualified majority.
The Dutch presidency seems to be avoiding conflicts by preparing an explanatory document that explains as little as possible. They do not explain which kinds of patent claims should be acceptable and which not, which interests are served thereby and which not and why. They merely point to the European Patent Office as the authority. One may wonder whether this is the intention of a qualified majority. Also, the Dutch presidency adds the TRIPs fallacy. They could just as well have added a statement that the earth is flat. Again it is to be wondered whether the member states can be enlisted as supporters of such a statement without a new vote.
Given the Dutch government's absolute "loyalty to the Council" (i.e. obedience to Philips and contempt of the Dutch Parliament), expect them to insert this new text into large pile of "A-items" and try to push it through the next session of some unrelated round of ministers (e.g. on agricultural subsidies or nuclear energy) in the coming days.
One group of amendments from the European Parliament is dismissed by the Council with the simple justification that they "did not reflect established practice". What kind of argument is that? Let's hope for the Council's sake that the European Parliament does not ever again get the idea that they can submit proposals which actually change things. Imagine that, politicians that think they can stop existing practice because it hurts the economy. What is this world coming to?