[Fsfe-ie] Update on software patents
j.heald at ucl.ac.uk
Fri Nov 7 14:27:46 CET 2003
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.
2. UK AND CEC POSITIONS.
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
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
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