[Fsfe-ie] Update on software patents

James Heald j.heald at ucl.ac.uk
Fri Nov 7 14:27:46 CET 2003

	1. Timetable.
	2. UK and CEC Positions.


The Council of Ministers has now released a briefing sent to "Coreper 1" 
(the member states' ambassadors) on how to proceed with the swpat directive:
The briefing gives two options on the timing for Competitiveness Council 
of Ministers to make a political decision on the direction of the 
Council common text:

(i) The meeting of the Competitiveness Council on November 27th.  This 
is the last date for political agreement, if the Directive is to 
complete its stages before the EuroParl elections next year.


(ii)  Next year sometime.  If waiting for the EuroParl elections doesn't 

According to someone at the UKPO (Thurs 6 Nov),  "I have no idea at the 
moment when COREPER is going to discuss this or what decision it is 
likely to reach".

Some have suggested that the council may deliberately decide to wait, 
despite the delay to the directive, because normally the Parliament 
would be bound in subsequent stages by its first-reading decision; but 
after an election, the Parliament (by decision of either the conference 
of Presidents, or a plenary resolution) has the option to re-run the 
whole first-reading process. (Parliament Rule 71.1 line 3).
On this scenario, delaying could give time for wait for the waves of 
protest to dissolve and fresh new MEPs ready to be lobbied.

On the other hand, such a long delay could be unacceptable to the Member 
States which most want the directive.

The quick option would require the 'technical experts' on the working 
group to draft a political statement to re-clarify the fundamental 
principles of the directive, in the light of the very different shape of 
the text passed by the Parliament as compared with that previously 
envisioned by the Council.

This statement would then be submitted for the Competitiveness Council 
to approve on 27 November.

In the light of the political statement, the working party would then 
carry out a detailed legal scrutiny and discussion of the exact wording 
of all of the clauses.

Putting on a tinfoil hat of paranoia, it's not clear how far to trust 
any signals about the Council going for the slow option.

Anyone who is concerned about software patents should go on doing 
everything they can, as soon as they can, as if the decision was on Nov 
27.  Then if the decision is postponed, that is a bonus, not something 
being relied on.


At the moment the UKPO seems to be trying very hard to avoid issuing any 
detailed systematic point-by-point analysis of the European Parliament 
amendments and what issues they raise.

The UKPO of course has well-known views on some of the issues -- for 
example on program claims (Article 5) and interoperability (Article 6a).

But apart from differences on those large issues, the European 
Parliament text also closes some quite subtle but very significant 
loopholes, especially in the area on what should and should not be 

It seems possible that the UKPO may be trying to do everything it can to 
keep these more subtle loopholes off the agenda, in the hope that by 
shutting down public discussion of them, they can keep Ministers from 
ever realising that the questions even exist, and ought to be 
politically considered.

To get an idea of how legal many subleties we are talking about, 
consider how many apparently innocuous amendments the European 
Commission staff have red-lined "non-negotiably unacceptable" as their 
preliminary assessment in the Coreper briefing.  These can be seen 
highlighted in side-by-side comparison at:

As soon as possible, it should be a priority to find out what agenda the 
'patent experts' are presenting to ministers as the issues that need to 
be considered to do with the directive, and to make sure that none of 
the very important subtle loopholes are being slipped past by default 
without discussion.

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