Polish rejection may derail EU patent directive

The future of the controversial European Union (E.U.) software patent directive was thrown into doubt Wednesday after the Polish government indicated it could no longer support the legislation in its current form.

The Polish Cabinet of Ministers, which voted in May in the Council of the European Union (informally referred to as the Council of Ministers) to approve the “Patentability of Computer-implemented Inventions” directive, announced in a statement released Tuesday that it has serious concerns with the proposed law and now “cannot support the text which was agreed upon by the E.U. Council.”

The NoSoftwarePatents (NSP) campaign said that without Poland’s backing, those countries that supported the proposal in May now fall short of a qualified majority in the Council of Ministers.

The NSP applauded the Polish government’s decision. In a statement, the campaign on Wednesday said that the Council will now have to renegotiate the legislative proposal to bring it more in line with the version approved by the European Parliament, which took the position of disallowing software patents.

The NSP campaign, which is supported by U.S.-based Linux operating system company Red Hat Inc., Swedish open-source database software company MySQL AB and German software and Internet services provider 1&1 Internet Ltd., contends that copyright laws are enough to protect business innovations and would like patents for software to be outlawed.

After meeting with Polish government officials on Monday, Mark MacGann, director general of EICTA, the European IT and communications industry association, said it was also his impression that Poland has problems with the directive.

“We got a clear message from the Polish government that they really have concerns that some of the language within the directive can be open to interpretation,” MacGann said Wednesday. “They are thinking ahead to the headache they will have when it comes to translating the directive and are dissatisfied with the quality of the text. They believe it needs further refinements.”

The EICTA contends that some software needs patent protection. Should the E.U. fail to implement such protections, European industry would be hampered when competing against other regions, like the U.S. and Asia, which allow software patents, according to the EICTA.

“We aren’t calling for software patents per say, we never have, and we do not want a U.S. style system where business methods are granted patent protection,” MacGann said. “What we do want is protection for inventions of a technical nature, like medical equipment, mobile phones and digital rights management solutions, for example.” EICTA members include software firms like Microsoft Corp., SAP AG and Sun Microsystems Inc., hardware makers like Hewlett-Packard Co. and Intel Corp. and telecom companies like Telefonaktiebolaget LM Ericsson and Nokia Corp.

The E.U. has attempted to establish an overarching patent standard for computer-implemented inventions, including but not limited to software, and bring into line the myriad interpretations given to patent law by different European national courts.

The E.U.’s executive body, the European Commission, submitted the directive, “Patentability of Computer-implemented Inventions,” to the European Parliament, one of the E.U.’s legislative arms, in February 2002. The Parliament, whose members are directly elected, added amendments to the directive that would have barred the patenting of software. However, in May the E.U.’s other legislative arm, the Council of Ministers, whose members are politicians from E.U. member states’ national governments, narrowly passed its own version of the directive that reintroduced software patenting.

That version of the directive is awaiting final approval from the Council, which is expected either late this month or early in December, before the proposed legislation goes back to the European Parliament for a second reading. But a reversal by Poland of its vote could derail the process by sending it back to the Commission or back into a working group.

MacGann warned that should the directive be kept from a second reading in the European Parliament, politicians may simply be throwing the baby out with the bath water.

“Yes, there are flaws with the directive. For example, its very name, ‘Patentability of Computer-implemented Inventions,’ is a disaster, but it would be a great shame if the directive went back to the Commission or into another working group because it would continue the current uncertainty over patenting computer-implemented inventions possibly for years,” MacGann said.

MacGann said he hoped that the directive would be formally approved by the Council next month. “In May, Belgium voted to abstain, and though I cannot speak for the Belgium government, we have been extremely encouraged by meetings we have had with officials in Belgium and are cautiously optimistic that they may change their vote to yes,” MacGann said.

Should Belgium decide to approve the Council’s version of the directive, Poland’s change of heart would not keep the “Patentability of Computer-implemented Inventions” from being formally approved and the legislation would then move to a second reading in the Parliament, where the contentious debate would continue, MacGann said.

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