[Fsfe-ie] Patents Latest (was: can we have a total rewind here)

Ciaran O'Riordan ciaran at member.fsf.org
Tue Sep 30 15:09:15 CEST 2003

On Tue, Sep 30, 2003 at 09:30:13AM +0100, mmcweeney at oceanfree.net wrote:
> Where's the latest on how we can protect free software from patents?

I'm up to my neck in other work at the moment so here's a terse
forward of my side of a conversation I was having with someone from AFFS:

Possible date for Council of Ministers meeting:
"On 10 Nov, software patents are possibly on the agenda for a meeting
of governmental patent experts from EU member states in the European

Make-up of Coucil of Ministers:
"The question of how to limit patentability is handled in the "Council
Working Party on Intellectual Property and Patents""

The co-decision procedure and where we are:
Okay, I've checked this by the europarl site, my book, and the comments
of the commission.  Here's the deal as I now understand it:

We had the EPs first reading.  Next comes the Councils first reading.
The Council can accept the EP version or make changes.  If they
make changes, the new proposal is called the "common position" and
it goes for a second reading by the EP.  The EP can:
a) Accept the common position by majority vote: proposal adopted
b) Not take a decision: proposal adopted
c) Reject the common position by majority vote: proposal rejected.
d) Propose amendments to the common position: 2nd reading by Council

If the Coucils common position overturns the non-patentability
of software, we must push the EP to go for (d).  No new amendments
can be tabled, it can just re-propose previously proposed amendments.

If this happens, the common position plus re-propsed amendments
go for a second reading by the Council.  The Commision gives
an "opinion" (positive or negative).  At Council 2nd reading, it can:

a) Accept the EP amended proposal by majority vote if the
   Commission's opinion was positive
b) Accept the EP amended proposal by unamimity if the Commissions
   opinion was negative
c) reject the EP amendments, a "conciliation committee" is then

The Commission have already said that they would not support
the proposal with the amendments that were adopted, so we can pretty
much assume a negative opinion from the commission.

So (a) won't happen and (b) is a long shot (unanimity of 15 states).

In the case of (c), a conciliation committee (Council plus an equal
number of MEPs) is formed.  They try to come up with a joint text.  If
they do, the Council and the EP have to approve it for it to be
adopted, otherwise the proposal is rejected and procedure ends.  So,
assuming (c) happens, if we are to win, we will probably have to lobby
the conciliation committee to make a good joint text.

That's the deal, but there are further problems.
At the Sept 23rd debate, Bolkestein speaking for the commission
said that:
"if we fail in our efforts to achieve a harmonisation of patent law
relating to computer-implemented inventions in the European Union, we
may well be confronted with a renegotiation of the European Patent
Convention.  And if I may be blunt, President, the process of
renegotiation of the European Patent Convention would not require any
contribution from this parliament."

I'm not sure how real his threat is.

The europarl description of co-decision is here:

Ciaran O'Riordan - http://www.compsoc.com/~coriordan/

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