The directive was due to be formally adopted at a meeting of the Agriculture and Fisheries Commission following its acceptance as an A item by COREPER (Committee of Permanent Representatives).
As an A item the directive would normally be adopted without discussion but was withdrawn from the agenda of the Agriculture and Fisheries Commission at the last minute at the request of Wlodzimierz Marcinski, Poland’s undersecretary of state at the Ministry of Science and Information Technology.
According to the Foundation for a Free Information Infrastructure (FFII), Marcinski was a surprise visitor at the meeting to present Poland’s view that the directive should be removed from the agenda to allow more time for it to be discussed.
Poland hit the headlines in November when its government rejected the proposed directive on the grounds that its wording is ambiguous and contradictory. Poland came to its decision after meetings between officials and representatives of Microsoft, Novell and Sun Microsystems confirmed the proposed directive makes all software potentially patentable.
Poland’s rejection of the directive also threw into focus changes to the weighting attributed to member country votes on November 1, which opponents say mean that the directive no longer enjoys the support of a majority.
Under the vote-weighting system in place when the directive was approved by political agreement in May 2004, there were 89 votes in favor of the directive, more than the required qualified majority of 88. Under weighting that came into place on November 1, there are 216 votes in favor, less than the new qualified majority requirement of 232.
Marc Verwilghen, the Belgian minister or economic affairs, told the Belgian parliament earlier this month that the directive no longer has a supporting majority, while anti-software patent campaign group NoSoftwarePatents.com has raised the potential for the European Parliament to restart the entire legislative process due to the change in circumstances.
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The directive cannot now be approved before the end of 2004, as the Agriculture and Fisheries Commission meeting was the last of the year. The directive was previously moved from the agenda of an Environment Commission meeting after it was criticized in a statement by the Mayor of the City Munich.
In July Munich temporarily suspended a move to Linux desktops over patent concerns. Mayor Christian Ude urged the Council not to push ahead with the adoption of the directive but to delay the approval pending further discussion on opposition arguments.
Even if the directive does become a common position early in 2005, it will still be just the start of a very long political process for the directive, which is designed to standardize European laws on the patentability of technology, but contains a loophole – according to critics – that would allow widespread software patents.
European Parliament amendments designed to close that loophole by strictly defining a technical contribution that makes software potentially patentable were removed from the directive before a political agreement was reached on it in May.
That agreement, with the support of a majority of EU members at the time, had looked set to become adopted as a common position of the Council, despite the opposition of a significant number of politicians, software vendors, and small businesses across Europe.
If the directive does still become a common position in early 2005, the European Parliament would then have three months (extendable to four) to agree the position, reject it completely, or amend the directive before sending it back to the Council of Ministers for another reading.
Normally the Parliament would only be able to reintroduce previous amendments, but UK Patent Office deputy director, Tony Howard, revealed last week that the Parliament is expected to alter its own rules procedure to allow for new amendments as the second reading will be held under a different Parliament from the first.
If amendments were to be made, the directive would then be returned to the Council, which would again have three months (extendable to four) to decide whether to accept or reject the amendments.
If it were to reject them, the two bodies would then enter a conciliation proceeding with the European Commission in an attempt to reach a compromise. If a compromise were to be reached, a third reading on the compromise agreement would take place after which either the Council or the Parliament could approve the directive.
