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On July 6th 2005 the Parliament voted to reject the current form of the directive (by 648 votes to 14, with 18 abstentions). This is a good result for European software developers of all sorts; while we would have preferred to see a directive similar to the Parliaments first reading this is much better than having the Council text approved.
The directive would now appear to be dead since Commissioner McCreevy has previously stated that "...if the parliament was to reject the directive then I would not be putting another proposal on the table."
The text being handed to the Parliament, by the Council, is an extremely pro-swpat text. By producing this text, the Council disregarded the Parliament's 1st reading input into the legislative process.
In the 2nd reading, for each amendment, an absent MEP is counted as a vote against. So we will need 60-65% of the present MEPs to vote for each amendment for it to be adopted. If the anti-swpat vote is split between two philosophies, both will lose. So the best course is to ask for a Yes vote on a broad range of amendments. This will produce a text that will require later fixing in a "conciliation process". Expecting to produce an imperfect text is ok because it's not the Parliament's job to produce enactable legislation. That is what the Council was supposed to do with the Parliament's amendments from the 1st reading.
On June 20th/21st, the JURI sub-committee of the European Parliament will meet to merge the 266 tabled amendments into a more understandable set that will be voted on by the Parliament on July 6th. Most of the 266 tabled amendments are duplicates.
In February 2002, the European Commission drafted Directive COD/2002/0047 to "harmonise and unify" the patentabilty criteria of Europe's patent offices. This is a good goal, but the text of the Commission's directive contained some loopholes and undefined terms regarding what constitutes a patentable invention. These loopholes would make all software ideas legally patentable.
In September 2003, after numerous delays and sustained lobbying, we were pleased that the European Parliament heavily amended the directive to unambiguously confirm that software ideas should not patentable.
Unfortunately, in May 2004 the European Council discarded most of the Parliaments amendments, returning the text to an unclear state relying on undefined terminology. The loopholes of the Council's text would allow software ideas to be patented.
Remember when you contact your MEPs, to tell them what persons or groups represent a position similar to yours. Since your reading this page, likely candidates are IFSO, FSFE, and FFII.
To defend our right to develop and distribute software, and to protect Europe's software developers from endless patent litigation, our MEPs must bring back all of the Parliaments 1st reading amendments.
We have to make sure the MEP candidates are aware of this issue and what they must do. You can help by contacting MEP candidates. The only question that doesn't allow an ambiguous answer is "Will you vote to bring back all of the Parliaments amendments?"
If you need any help with what to say, or if you want someone to take over and explain the issue to an MEP, contact IFSO's Committee by email. There is also the fsfe-ie mailing list for public discussion.
(For a slightly more detailed explanation, please read IFSO's recent Letter to the Council, and our original Letter to the Parliament.)
Two of the larger problems with the text of the directive:
The Council added the following: Article 4a(1) "A computer program as such cannot constitute a patentable invention."
At first reading this appears to exclude software from patentability but the "as such" in this usage means "as a computer program". So patent applicants simply describe their innovation as being more than just a computer program, i.e "An invention comprising (A) a computer of limited resources, (B) software which, upon loading into the memory of (A) causes process XYX to occur".
The directive says that for an innovation to be patentable, it must cause a "technical effect", but this term isn't defined. Software could be interpretted as having a technical effect.
Since patent offices are paid for the applications they accept, not the ones they reject, there are incentives for them to look for avenues which allow them to sell more patents. The final directive must be unambiguous.