European software patent law hangs in the balance

Poland changes its mind, but all is not lost

The fate of the European software patent directive is set to be decided next week, as its supporters and its opponents head to a final showdown in Brussels.

In the red corner, we have the Council of Ministers, the authors, and long-time supporters, of the current draft. In the blue corner, we have the European Parliament, an increasingly powerful institution, determined to send the bill back to the drawing board. The battle to be fought involves some extraordinarily dull parliamentary procedural rules, so don't expect it to be pretty.

The European Council of Ministers is once again poised to formally adopt the current draft of the Computer Implemented Inventions (CII) directive, despite Parliament's continuing opposition. Brussels bureaucrats will likely confirm tomorrow that the directive will be back as an A-point item at the next meeting of the Council of Economic and Financial Affairs, slated for 17 February.

Poland, which has blocked the bill on two occasions, now says it will support the draft in a new vote, despite reservations about the impact of the legislation on smaller businesses. This clears the path for the bill to proceed to its second reading, when Poland says it will seek changes. An unnamed Polish official told Reuters: "But in the second reading, we believe that changes are desirable to protect small and medium-size firms ... It cannot be the case that every single mouse click is patented."

Last week, the group of MEPs responsible for legal affairs (JURI) voted to ask for a restart, which would effectively send the directive back to the beginning of its first reading. Their request needs approval, however, and guess what? That vote is taking place on the same day as the Council of Ministers' meeting.

On Thursday next week, both votes could be successful: the directive could be formally adopted by the Council of Ministers, and the vote for a restart could be approved. In that case, the JURI committee's vote would hold sway, according to Florian Muller, head of anti-software patent campaign group No Software Patents.

Thanks to a technicality in one of the Parliament's many rules, Parliament's president is obliged to consider the JURI request, even if the Council formally adopts the bill.

The Commission, which then has to vote on the JURI request for a restart, might reject the request out of hand. In that case, the bill's passage to a second reading is inevitable.

Says Muller: "If the Commission goes for an all-out conflict with the European Parliament and turns down the restart request, despite the near-unanimous JURI vote, the President of the EP has to make the announcement [that a common position has been reached]."

So will the directive be rubber-stamped through to its second reading, or could the software development community get out of jail free, one more time? Ultimately, the fate of the directive rests with the Commission, a group of unelected appointees, often referred to as the civil service of the European Union. ®

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