[ffii] Patent administrators preempting parliaments in Council

Jonas Maebe jmaebe at ffii.org
Mon Jun 6 12:08:27 CEST 2005

PRESS RELEASE FFII -- [ Europe / economy / ICT ]

Patent administrators preempting parliaments in Council

6 June 2005 - We offer an exclusive first-hand report of the closed
27th May and 3rd June meetings of the Council Working Group on
Intellectual Property (Patents). National Parliaments must take action
now if they do not want their position to be decided by these patent
bureaucrats. This is the European democracy crisis you do not hear
anything about.

The second reading of the European Parliament on the software patents
directive is still a month away. Afterwards, the Council will have to
debate the approved EP amendments in its own second reading.
Nevertheless, the "Council working party on intellectual property
(patents)", which mainly consists of national patent administrators,
is already setting the stage to nullify any potential meaningful
outcome from the EP, with no input from national Parliaments.

 From the report below it is clear this working group, and by extension
the Council, is still not interested in any compromise. Some
delegations even mention the potential use of meaningless or even
confusing (but non-limiting) amendments for "negotiation situations"
with the EP. This is not surprising given that they have for two years
been failing to respond to the European Parliament's objections to
software patentability and instead produced a deceptive paper which
was adopted by the Council in March of this year.

The European Parliament has only two choices if it wants to have some
say in the rest of the process. The first possibility is approval of
all key amendments which limit the scope of the directive. Just one of
those may be enough to reach Conciliation (the official discussion
between the EP, Council and Commission after the Council's second
reading), but is insufficient for a strong negotiation position. If
Parliament wants to continue the procedure, without such a steadfast
position it could just as well save time by simply approving the
current Council text.

The second possibility is outright rejection. The Commission refused a
restart without explanation. The Council is being run by lackeys of
the patent establishment and undermining people's belief in European
democracy at a time where the reverse is urgently needed. Specialists
before the EP's Legal Affairs Committee testified that the Commission
and Council texts are a juridical mess.

"Turning sulphuric acid into wine is not the EP's job", commented
Jonas Maebe, FFII Board Member. "On the other hand, sticking to their
first reading stance would also send a strong signal to the Council.
Whichever of these ways they choose to follow, we will support them."

Detailed meeting reports -- http://swpat.ffii.org/log/05/cons0527/

At the June 3rd meeting two plans were discussed, both of which are
already being executed. Plan A is simply what we are already seeing
today: lobbyists with huge budgets at their disposal are attempting to
dissuade MEPs from approving any meaningful amendments. Tactics range
from spreading misleading statements about venture capital investments
to handing out "free icecream [to] support the Computer Implemented
Inventions Common Position".

In the mean time Plan B is being prepared by the Council working
group, in case the lobbyists should fail. If the European Parliament
does strongly amend the directive in second reading, the Commission
and Council will have to change the Council text that was pushed
through on March 7th if they want the directive to come through in the

They are therefore exploring the opinions of the patent administrators
of the Member States on this topic, as they generally decide about
government policy on this topic as well. They are also the same people
who run the European Patent Office in their function of
representatives on its Administrative Council.

Germany: Hardcore opposition to Bundestag motion

 From the full report of the May 27th meeting, it is clear that Germany
is taking a hardcore stance and completely ignoring the motion
approved by its parliament. They think that any change proposed by the
JURI Committee to the Council text is unacceptable, except for some
cosmetic amendments tabled by Lehne MEP (EPP). Mr Lehne's situation is
notable in itself, since he is also ignoring the position of his
national colleagues.

The Netherlands: Taking position before promised Parliament

The Netherlands' representatives similarly rejected most JURI
amendments on May 27th, although State Secretary Van Gennip had
promised the Parliament they would not take a position before the
Parliament had been consulted.

On June 3rd they only mentioned that a position paper had been
presented to the Dutch Parliament, but at the previous meeting they
even expressed doubts about minor amendments such as changing the
title from talking about "computer-implemented inventions" into
"computer-assisted inventions", because according to them it would
change the scope of the directive.

At least they confirm with that statement that the Council text is not
only about anti-lock braking systems after all.

Poland resisting almost alone; Spain, Italy and Austria backing off

Poland is at this time the only country which is consistently
supporting the EP's rapporteur, Michel Rocard MEP. It did get some
hesitant support from Denmark and Slovakia, as well as France in some

Spain, Italy and Austria were clearly giving up during the June 3rd
meeting however. Austria was following Germany. Italy even started to
help inventing fake compromises, such as putting all alternatives for
the term "computer-implemented invention" together into the definition
articles.  Spain did support a few amendments tabled by Ortega MEP,
but those are a mixed bag. It is definitely not following the motion
passed by its Parliament last February.

Other countries and the Commission

Hungary is, just like Germany, a categoric opponent of any amendments
to the Council text. On May 27th they claimed their experts went
already through all amendments and that none of the rapporteur's
amendments were acceptable, even though the Hungarian government's
report on said amendments will only be finished on June 6th.

The Commission is, perhaps surprisingly, more flexible than most of
the Eastern-European contingent (apart from Poland and Slovakia) and
Scandinavia (apart from Denmark). They seem to be prepared to drop
patent claims on computer programs on their own (so-called "program

Belgium did not yet take a firm position. Luxembourg neither, except
that they support an interoperability clause. Malta is for unlimited
patentability, but with a proper interoperability exemption. The UK,
Ireland, Portugal and Czech Republic only can accept some cosmetic
amendments here and there.

The UK also referred to the results of the workshops it held on
defining the term "technical contribution". It mentioned some
criticism from attendees on the usage of forces of nature to limit
patentability, but unsurprisingly failed to note the characterising
remark about the Council definition that lawyers would "be able to
drive a bus through it".

Contact information

Hartmut Pilch and Holger Blasum (Munich Office)
info at ffii org
tel. 0049-89-18979927

Erik Josefsson
erjos at ffii.org
FFII Brussels Representative

More information

Summary of the 27 May 2005 meeting by one of the delegations:

Council trying to derail Parliament's Second Reading

MEP offers colleagues ice cream for pro-patent vote

German Bundestag passes unanimous motion against Council text

Spanish Senado votes unanimously against software patents

UKPO Workshop Council definition evaluation

FFII.fr asks for a "new inpulse" from France on the swpats directive

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