Subj: Software Patent Directive on Agricultural Council List of A-Items

Dear EU Minister of Agriculture and Fisheries,

At the Agricultural Council's meeting on Tuesday and Wednesday, the Directive' COM 2002/0047 (COD) "On the Patentability of Computer-Implemented Inventions" (Software Patent Directive) is likely to be inserted into the list of A-items in the last minute.

This list should not be accepted.

Please object when the Council President asks for confirmation of the agenda (at the beginning), and demand the removal of the software patent directive from the list of A items.

The Council's rules of procedure demand that the provisional agenda be sent 14 days in advance. In this case, the software patent directive was set on the agenda no earlier than 2 working days in advance.

According to Article 3 Items 7-8 of the Council's Rules of Procedure, it is enough if one country objects to this late tabling, but support for removal may be expected from several countries.

The proposed text does not enjoy a qualified majority. It has been inserted into the agenda on the basis of questionable interpretations if not violations of the Council's Rules of Procedure.

1. The Dutch government has been obliged by its parliament to withdraw support. A proposal can not be adopted without a vote, and if it is voted, the Dutch presidency must abstain. If the Dutch presidency does not abstain, minister Brinkhorst may face a motion of distrust and be dismissed. This means that, given the continued opposition from Spain, Italy, Belgium and Austria, even without Poland's abstention, the current Council Proposal no longer enjoys a qualified majority.
2. On 19th of May and on 16th of November the Polish government has stated that it can not support the Council proposal. However the Polish EU minister, who is not in charge of the dossier, has so far, under pressure from the Council presidency, been reluctant to execute the decisions of the Polish government.
3. The Council proposal has been criticized by all groups of the German Federal Parliament (Bundestag) as being deficient. As the inter-group resolution of the 30th of November 2004 points out, it does not satisfy the demands for clarity and balance that a proposal with such significance must fulfill.
4. The Latvian Government has made it clear in a unilateral statement that it does not support the proposed text. The French and Hungarian governments have also expressed reservations. In Slovenia, Slovakia, Portugal and Hungary there is practically no support for software patents anywhere in the industry or government, except in the narrow circles who dominate the Council's patent working party.
5. The new vote is needed because the Rules of Procedure of the Council demand a qualified majority at the time of the formal adoption of a Common Position. A political agreement can only be adopted, if it is supported by a qualified majority of governments at the time of the vote. "Adoption as an A-item" means "adoption without discussion", not "without vote". There can be no adoption without vote.
6. The change in voting weights on 1 November means that the Council proposal now lacks a qualified majority if either the Netherlands or Poland abstain.
7. The explanatory documents for the Council draft were made available only very recently so that at the time of this Council meeting only half of the six-week period reserved for the consultation of national institutions will have elapsed. The urgent scheduling of a parliamentary special session in the Netherlands after the COREPER meeting on December 15 shows the importance of this consultation period. This text rejects essential amendments by the European Parliament, arguing that they are "incompatible with the TRIPs treaty" or that they would not reflect "established practice". These arguments are new, not covered by any "political agreement" and in clear contradiction to the resolution of the German Parliament and can not be adopted without a vote.
8. The Protocol on the Role of National Parliaments in the Treaty of Amsterdam explicitly encourages participation by national parliaments in the EU legislative process. It does not exempt the Council of Ministers. Accordingly, attempts to thwart the integration of the positions of several national parliaments (NL and DE) at this stage would be illegitimate.

The software patent directive is creating great difficulties for the Council because the Council has been nominating the goats to be the gardeners. The "Intellectual Property (Patent) Working Party" consists of the very national patent administrators who in personal union also run the European Patent Office. They have been unwilling to deal constructively with the questions at hand. They have ignored the substantial amendments of the European Parliament without justification and without addressing the problems of economic policy which the Parliament tried to address. They have in fact merely restated their previous agreement of November 2002, in which they had recited recent doctrines of the European Patent Office. These doctrines, in effect, authorise the monopolisation of business methods, algorithms, data structures and process descriptions in the same way as in the USA, without any effective limitation. The gap between these doctrines and the Parliament's proposal is so wide that it will be impossible to overcome it within the procedure of a second reading. The Council has yet to begin a real first reading and to deliver a text which at least shows some willingness to face the issues. Now is the opportunity to take this first step. If it it is not taken in the Council's first reading, then the directive is unlikely to get anywhere in the next steps of the co-decision procedure.

In Summary:

• The current Council Proposal can not be passed as an A-item, and there is no need for any minister in the Agriculture Council to accept it.
• Any attempt to pass the proposal as it stands is higly hazardous for information society and democracy in the EU and incompatible with the Rules of Procedure of the EU Council.

Yours sincerely,

Please find further information at

• Netaction for EU Democracy
• Karl-Friedrich Lenz (professor of European Law) on the current situation in the Council
• FFII: Revising the Political Agreement
• FFII Software Patent News
• Nosoftwarepatents.com

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