2004-05-20 PL Polish representative in Council did not support the directive

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The Polish representative at the Council vote, Jaroslaw Pietras of the Committee for European Integration, said in a letter that the Polish vote did not change from 'abstain' after the break. After the bogus German amendments circulated, he consulted the Ministry in Poland by phone, but these consultations were interrupted because of the Presidency claiming that a Qualified Majority had been reached even without Poland's support.

A representative from the Polish Ministry of Science and Information feels that the bogus German amendments were foolish and misleading, and that the vote happened so fast that it didn't provide enough time for consultance. He is still abstaining from supporting the Directive.

This means that there were 35 votes in the Council against the text -- if Denmark had stood firm against the Presidency's insistent pressure, that would have 38, one more than the 37 required for a blocking vote.

English translation of the Pietras letter

Thank you for your e-mail regarding the debate of the Competitiveness Council and your question about the directive of the European Parliment and The Council of the European Union regarding the patentability of computer-implemented inventions.

As you very well know in this subject the leading in our government is the Ministry of Science and Information, and that was the ministry which prepared the project of instruction about what positions to take on the discussion about this project. The instructions were discussed and accepted before my departure from Warsaw, and of course was clear that Poland does not support software patents, but in the current stage of legislation will support German reservations to article 2b. This position was presented by me on the Council debate. It resulted in a break in the debate and submitting amendments, some of which by Germany. These amendments were:

  1. statement in article 4a entitled "exclusions from patentability", that computer programs as such can not constitute a patentable invention
  2. statement regarding inventions which contain computer programs regardless of whether expressed as source code, object code or any other form, which will also not be patentable
  3. a change in the definition of "technical contribution" in article 2b

After that the Presidency leading the debate checked whether this project would obtain the required majority (qualified majority is needed, so to block the directive 37 votes not voting 'yes' are needed). After a change in the german position blocking the directive was announced not to be any more possible, hence the Presidency didn't have to ask our delegation about our position, only proclaimed that the qualified majority of votes 'yes' has been reached, and that the project is accepted. So we didn't speak after the break. Before the break Poland alone had the weight needed to block the vote. After change of position of other countries our opinion was no longer decisive. Of course I have called the ministry in Poland by phone during the break.

So that's all about the debate, now some personal comments.

The project was debated in the EU for a long time, but only now Poland is allowed to take position on it, and the posibility was used by Poland. I don't know about the Ministry of Science and Information, but no comments from the interested societies were coming to me. The first comment which came to me were the materials send to me just one day before the debate by "Internet Society Poland". I would like to underline, that all instructions for this directive are drafted by the Ministry of Science and Information, and I have been following them. Work on this directive project is not ended yet. This is just a political agreement of the Council, which will be presented to the European Parliament. Remember that the directive will be a joint document by the European Parliament and the Council of the European Union.

There are other questions which we have to ask ourselves: for example doesn't the practice of the patent offices in several countries create dangerous precedents? Don't we need to specifically state that computer programs cannot be patented, and precisely describe what can be patented and how this should be defined also in these countries which practise a much broader patenting?

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