Opponents of plans to introduce software patents in the European Union (EU) won a major victory Thursday when the European Parliament demanded a restart to the decision-making process.
Leaders of the Parliament’s political groups unanimously backed a request from the legal affairs committee to request the European Commission to repropose a draft directive on the patenting of inventions implemented by computer.
While the Commission could ignore the Parliament's request, it risks a major political battle with the assembly if it does so. In any case, the Parliament could reject any legislation it doesn't like at the end of the process.
If the Commission, which is responsible for preparing draft EU laws, decides to restart the legislative process, it will win time for opponents of the directive and give them more scope to try and prevent patent protection being extended to software.
Poland stands its ground
Polish member of Parliament (MEP) and former Prime Minister Jerzy Buzek called the group leaders' move to request a restart of the legal process a "very good decision." He called for a real debate to start about the patents directive but stressed that the EU should set a limit of one year for agreeing to legislation on patents because Europe needs these rules to help foster innovation.
However, the decision was criticized by one of the main IT industry associations, EICTA. Mark McGann, EICTA’s director-general, said it was "unhelpful to see the legal uncertainty extended." The European IT and communications industry (EICTA) association represents major IT and telecom companies.
However, the initial reaction from the Commission did not suggest that the Parliament would get its way easily. A spokesman for internal market commissioner Charlie McCreevy said that the Commission had "taken note" of the assembly's request while commenting that it appreciated efforts by the Luxembourg presidency to ensure the issue followed the usual decision-making procedures.
An insult to Parliament
Alain Lipietz, MEP for the French Green Party, warned that ignoring the assembly's request would be regarded as an "insult" by the Parliament and would lead to them rejecting any version of the patent law that they do not agree with.
The announcement of the Parliament's decision coincided with a demonstration in Brussels by about 300 opponents of software. Protestors handed bananas to a representative of Luxembourg, which is currently chairing EU meetings, and of the European Commission to highlight their call to stop the European Union becoming a "banana republic" by ignoring the level of opposition to the planned directive.
The fight over the software patents directive has become one of the most bitterly contested pieces of legislation in the EU's history.
Originally designed to extend patent protection to inventions that are implemented by computers, such as mobile phones or washing machines, the legislation has been attacked as opening the door to a US style patent regime where "pure" software and business methodology, such as Amazon's One Click online purchasing process, can be protected against imitation.
The European Parliament, which has joint legislative power with the Council of Ministers, asked in September 2003 for patents to be limited to inventions using the "force of nature," for example, using electricity. But this was rejected by the Council of Ministers, which is made up of national governments' representatives. The Council argued that this would not allow effective patent protection for computer-based inventions. The Council approved a version of the directive in May that threw out the Parliament's definition.
Since then there has been a tug-of-war between the Parliament and the Council.
Moves to have the Council's May agreement formally approved, clearing the way to the next legal stage of the process, were blocked twice by the Polish government.
Dutch, Spanish, Germans stand with Poland
In the meantime opposition to the May agreement grew with the Dutch and Spanish national parliaments passing motions calling on their governments to vote against the Council's version of the Directive. The German Bundestag is expected to adopt a similar resolution Thursday evening.
In the meantime, MEPs on the Parliament's legal affairs committee voted 19-2 in favor of using a little-used and obscure legal device to ask the Commission to restart the legal process.
This would give opponents of the directive more scope to try and ensure that patent protection is not extended to software because it gives the Parliament another chance to get its objections taken into account.
Debate, not steamroller
Erik Josefsson of the Foundation for a Free Information Infrastructure (FFII) said that he hoped that a "real factual debate" on software patents could start. He called on the big players in the software sector to identify problems they had encountered with the patent system in the US so they could work together to avoid them in the EU.
He stressed that FFII was not antipatents but was opposed to software patents. He argued that the copyright system gave adequate protection to developers and had the advantage of being "fast, cheap and narrow." His organization opposed broad patents which, he said, were "expensive and dangerous" because they created legal costs.
EICTA's McGann welcomed FFII's call for a debate on the issues but stressed this should take in the "need for intellectual property protection and patents for high-tech inventions."
McGann said that his organization was "100 per cent" in agreement with those who oppose patents on software. "We don't want a situation like in the US where software or business methods can be patented," he said. But, he added, "we don’t want to thrown the baby out with the bath water" by not having any patent protection.