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EU software patents: how the vote was won

No hanging chads, but still a close call

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The European Directive on software patents was voted through last night by the slimmest of margins. Crucially, Germany switched its position at the last moment and voted to support the directive, despite its previous vehement opposition.

In the expanded EU, 37 votes (up from 26) must be recorded against an item for it to be blocked. At the meeting in Brussels yesterday, 30 votes were counted against the bill. Germany, with ten votes at its disposal, effectively had the final say.

So what was behind the sudden change? Germany had very specific objections to the wording of the text, as it emerged from the Council of Minsters meeting last week. It wanted clarification on what should, and should not count as technical.

The article in question, article 2b, reads as follows:

2b. A technical contribution means a contribution to the state of the art in a field of technology which is not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether these are accompanied by non-technical features.

Germany wanted to strengthen this definition to exclude patents on the mere handling, processing and presentation of information, and to require technical features to predominate. However, once the text was amended to say that the contribution be new, as well as not obvious, Germany dropped its opposition and voted to pass the directive.

Changes were also made to Article 4, which deals with conditions for patentability, and what consitutes an inventive step.

Spain voted against the directive and Belgium, Italy, Denmark and Austria all refused to support it. In previous negationations, Poland, Austria, Latvia and Germany had all expressed reservations. There were even indications that France might oppose it, but its final position was that the current situation was too uncertain to continue, and that some legislation would be better than none.

The directive must now be formally adopted by the council. Then it will go to Parliament for a seond reading. ®

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