[DMCA-Activists] EU Council Acts to Legalize EPO Software Patents

[Seth Johnson]

The news out of Europe:

The EU Council has just endorsed their draft of the "Directive on
the Patentability of Computer-Implemented Inventions" eliminating
all of the amendments by which the EU Parliament, in September
2003, had made clear that software was not to be patentable.

The "CII Directive" is designed to codify the European Patent
Office's ludicrous practice of granting software patents in
direct contradiction with the European Patent Convention (EPC),
which disallows patents on software "as such."

For the legally-inclined, take a look at the following case, and
you'll see the hairy reasoning by which the EPO has twisted the
phrase "as such" to allow software patents despite the law:

> http://legal.european-patent-office.org/dg3/biblio/t970935eu1.htm


Below are announcements from the Greens and FFII.  You can keep
track of news on software patents in Europe at
http://kwiki.ffii.org/SwpatcninoEn .


Seth

---

-------- Original Message --------
Subject: [GreenSource] Software patents adopted in Council
EN+FR+DE+IT
   Date: Mon, 7 Mar 2005 16:58:39 +0100
   From: "VANDEWALLE Laurence" <address@hidden>
     To: <address@hidden>


THE GREENS IN THE EUROPEAN PARLIAMENT

PRESS RELEASE– Strasbourg,7 March 2005 

Council adopts software patents directive:
A slap in the face for the Parliament


  Commenting on the adoption of the controversial software
patents directive today by EU research and industry ministers,
Monica Frassoni, Co-President of the Greens/EFA Group in the
European Parliament, said:

  "The Competitiveness Council's decision today to adopt the
software patents directive is a slap in the face for Europe's
growing software industry and for the European Parliament. The
Council has apparently fallen on its knees before the likes of
Microsoft, and betrayed the interests of Europe's software
developers."

  "Ministers have ignored the will of the Parliament, where the
Conference of Presidents unanimously spoke out against the
adoption of the directive. This has created a serious
institutional conflict between the Parliament, Commission and
Council. For purely formal reasons, EU ministers confirmed a
common position dating from May 2004, even though the
circumstances in the meantime have dramatically changed. Council
has also ignored growing opposition to this directive in many
national parliaments, which are justifiable worried about the
future of their national software industries."

  "The current text of the software patents directive must not
become law. From this moment on, the Greens will work to assemble
as large a lobby as possible to ensure that the current proposal
for the directive doesn't get through Parliament's second reading
in its present form."


[ENDS]

< Alternate language versions snipped >

---

> http://kwiki.ffii.org/Cons050307En


Council Presidency Adopts Software Patent Agreement Against
Council's Rules


7 March 2005 -- The Council Presidency today declared the
software agreement of 18 May 2004 to have been adopted, in
violation of the procedural rules and in spite of the evident
lack of a qualified majority of member states and the requests of
several states to reopen negotiations.

Report

    * Cyprus submitted a written declaration at the start of the
Council session
    * Poland, Denmark, Portugal and others (not specified) asked
for a B item (discussion point)
    * The Luxembourg presidency claimed this was not possible due
to procedural reasons, and that this would have undermined the
whole process -> it would stay on the list of A-items
    * Luxembourg then gave a long statement regarding how the EP
still gets a chance in second reading, the importance of avoiding
legal uncertainty etc.
    * Denmark said it was disappointed about this, but accepted
and submitted a written declaration
    * Later on, the list of A items was accepted by the Council 

Conclusion

    * Luxembourg negated the Council's own Rules of Procedure,
which state that a B-item (which is at the same time a request to
remove an A item) can only be rejected by a majority of the
Council, and not just by the Presidency. (art 3.8)
    * The objecting countries seem to have forgotten to request
removal of the A-item from the agenda. Rules 3.1 + 3.7 would have
given any single country the right to have the A-item removed,
because the Luxemburg presidency had failed to insert it more
than 14 days earlier. This is how Poland has removed A-items from
the Agricultural & Fishery Council twice in the past.
    * This is a very sad day for democracy, and casts a very dark
shadow over the European Constitution, which will give the
Council even more power. 

Council defense

Reportedly, the Danish minister (who was forced by a
parliamentary committee to request a B-item, but did not like
that at all) and the Luxembourg Council Presidency use the
following paragraph as defense for their behaviour:

3.6. The provisional agenda shall be divided into Part A and Part
B. Items for which approval by the Council is possible without
discussion shall be included in Part A, but this does not exclude
the possibility of any member of the Council or of the Commission
expressing an opinion at the time of the approval of these items
and having statements included in the minutes.

This paragraph indeed does not mention anything about the
possibility to change an A item into a B item. Looking at rule
3.8, that one says:

3.8 "However, an A item shall be withdrawn from the agenda,
unless the Council decides otherwise, if a position on an A item
might lead to further discussion thereof or if a member of the
Council or the Commission so requests."


They might argue this still doesn't say anything about changing
an A item into a B item, although three countries (with the
support of more) asking for a B item is hard to classify as
anything but something which "might lead to further discussion".
Additionally, Annex III of those same rules of procedure states
on page 20, point 1(c):

(c) Article 3(8) (maintaining as a "B" item on the agenda an "A"
item, which would otherwise have had to be withdrawn from the
agenda);


This clearly and literally provides for the possibility of
turning an A item into a B item if otherwise the A item would
have to be withdrawn from the agenda (which is the case if there
"might" be further discussion due to some statement from a
country). Audio stream from Council session (sent by on-site
activists)

    * Since the debate is over, the live stream links have been
removed
    * Audio recording 

Comments

Jonas Maebe, FFII Board Member:

It is absolutely unfathomable what happened today. I cannot see
how the promoters of the European Constitution can still support
it with a straight face. This event shows that something is
clearly rotten in the city of Brussels at the Council building.
Why on Earth do we still have the rules that state that national
parliaments should be taken into account by the Council?

Things would be much easier if we scrapped all those rules and
simply wrote down "The Council presidency and Commission can do
together whatever they like". There's no need for those pesky
democratically elected parliamentarians to interfere with the
smooth decision making process of the Council, since its only
goal appears to be to please big business and to produce as many
texts as the sausage machine can bear.

This is absolutely disgusting.


Hartmut Pilch (english version soon):

Die nächste Frage ist jetzt, wie der Rechtsausschuss des
reagiert, der heute um 18.00 in Straßburg zu diesem Thema tagt.

Das EP muss nach EP-Regel 57 entscheiden, ob ein "Gemeinsamer
Standpunkt" vorliegt.  Angesichts des heutigen eigenmächtigen
Verhaltens der Ratspräsidentschaft erscheint dies zweifelhaft.
Ohne "Geimeinsamen Standpunkt" kann das EP auch nicht zu einer
zweiten Lesung voranschreiten.  Eventuell wird da der EuGH
entscheiden müssen.  Auch die düpierten Regierungen von
Dänermark, Polen, Portugal etc haben Zugang zum EuGH.  Für uns
übrige Europäer bleiben vielleicht nur Mittel wie eine Bewegung
gegen die EU, natürlich auch gegen die EU-Verfassung. Auch wenn
die Ziele der EU begrüßenswert sind, muss das Ausmaß an Leid und
Tyrannei, das wir um dieser Ziele willen in Kauf zu nehmen bereit
sind, irgendwo seine Grenzen haben.  Wenn wir die in diesem Fall
nicht klar aufzeigen können, steht uns noch viel Ungemach ins
Haus, nicht nur von Seiten des Patentwesens.


Extra information

    * Council press briefing 

Contact

Dieter Van Uytvanck
dietvu at ffii org
tel. +31 (0)6 275 879 10

Jonas Maebe
jmaebe at ffii org
tel. +32 (0)485 36 96 45

Hartmut Pilch
phm at ffii org
tel. +49 (0) 89 18979927



About FFII -- http://www.ffii.org

The Foundation for a Free Information Infrastructure (FFII) is a
non-profit association registered in several European countries,
which is dedicated to the spread of data processing literacy.
FFII supports the development of public information goods based
on copyright, free competition, open standards. More than 500
members, 1,200 companies and 75,000 supporters have entrusted the
FFII to act as their voice in public policy questions concerning
exclusion rights (intellectual property) in data processing.