Cons041203En

2004-12-03 EU Council Presidency Publishes Multilingual Software Patent Rationale Document

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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.

Quotes from the Reasoning

Comments, Questions

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Hartmut Pilch:

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.

Jonas Maebe

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?

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