Software Patents Circumvent European Parliament

Tom writes "Despite the european parliament's vote to exclude software patents, the patent lobby is pressing forward and patentability of software is on the agenda of a workgroup whose advise the european council will likely follow. The european council is at odds with the parliament concerning their stance on software patents. The patent lobby is facing a narrow loss in the parliament, which has voted against software patents, but now circumvents democracy by convincing the council. If they succeed, software patents could be coming to Europe before christmas." <update> The links above seem to have stopped working for me - however, ffii is carrying the news as well.

Comments

Re:Whoever posted this doesn't understand the EU..

[Anspen]

Don't you hate it when you correct a mistake with a mistake? :)

Actually the only institution that can propose legislation is the European Commission. Both the council and the parliament can amend though.

What I'm wondering is how they think to get this past parliament. "sneaking" it into the text or not, the subject is one where the EP has co-decision right. Which means it's shouldn't become law until the EP has voted on it

Some corrections and overview

[Halo1]

For the record: if the Council approves its pro-software patents text, all is not yet lost since there is still a second reading in the European Parliament. A downside of this second reading is that the EP can only amend the Council's text using absolute majorities there (i.e., half the number of MEPs must vote in favour of an amendment, regardless of how many abstain or are even present at the vote).

The big news is however that the Council Presidency is basically trying to circumvent the Council itself. In May, they reached a political agreement on the most pro-software patents text seen in EU legislative circles until now. At the Council meeting in May, Poland first abstained, then Germany and the Commission introduced some fake compromise amendment, and after a break Poland was not consulted again about its position, because there was a qualified majority in place even without its support. They confirmed afterwards their position did not change because of the bogus compromise amendment.

Recently, Poland confirmed its position, after everyone in a meeting with HP, Novell, Microsoft and others confirmed that the text of the Council of Ministers allows pure software patents (contrary what is often claimed). And apart from Microsoft and the Polish Patent Lawyers association, everyone agreed that software patents would be bad for the Polish economy. Because the voting weights changed on 1 November (due to the joining of all the new member states to the EU), Poland's support suddenly became necessary and thus the qualified majority was officially broken.

Other notable events since the political agreement of May are the fact that in July the Dutch Parliament asked its government to change position from being in favour to abstention, and at the start of this month all parties of the German Parliament did the same.

So the Council currently has an ugly text on the table which is no longer supported by a qualified majority in any way, but by means of diplomatic pressure on Poland and others the Dutch presidency (lead in this case by Minister Brinkhorst) is trying everything it can to push it through nevertheless.

Did what I could...

[Anonymous Coward]

....at least, I hope I did, still open for suggestions.

I wrote to the people who are supposed to 'represent' me, and asked them how the hell our country (the Netherlands) could be behind this push for Software Patents, when a majority of parliament is against it.
A couple of months ago saw a petition voted in to have the minister of foreign affairs retract his support for software patents. And now aparently not only are we voting yes, we're also behind pushing the Polish to give up their resistance to these patents?
Even worse, this minister is from a party which supposedly is the most vocal supporter of the european -democratic- proces, demanding more power to the european parliament, and less to the council. (Great way to show it guys, now I know why I voted for you :( )

So a call to all dutch Slashdotters, write an email to your representatives. Not much time left to act.

CDA:
cda.publieksvoorlichting@tweedekamer.nl
P vdA:
voorlichting@pvda.nl
VVD:
Vragen stellen aan tweede kamerleden
D66:
http://www.d66.nl/contact

(not a complete list, I know)

Re:If anyone is still confused

[Halo1]

I *think* this is what is happening. The Council is formed from the ministers of the Member States of the Union.

Correct. Note that although the Council is a single legal/political body, depending on the subject that's handled different ministers attend.

It proposes legislation on the advice of the EU Commission (yet another body made up of appointed bureaucrats whose purpose is to develop and uphold the workings of the Union).

No, the Commission proposes the legislation (possibly on advice of the Council, I'm not sure).

This directive has been proposed under the so-called co-decision arrangement with the European Parliament - the directly elected body of the EU.

In co-decision, Parliament has some measure of veto over the Council - it is the strongest of the arrangements between the parties. Council has sent the draft directive to Parliament.

No, the Commission did.

Parliament could adopt the proposed legislation - whereupon it would have taken effect in the EU, instead it proposed amendments.

Indeed. It could have also downright rejected it, in which case the directive project would be stopped immediately.

The amendments have then gone back to Council which now has a choice. It can choose to accept Parliament's amendments and produce a compromise directive. Or it can override Parliament - but only by a unanimous vote by the members of Council. This is why the Poles are being strong-armed.

No, if the Commission agrees with the amendments they propose (which it does), they only need a qualified majority (basically 2/3rds of the weighted votes + a minimum number of supporting countries). Since 1 November, the voting weights have changed and now Poland is required to have a qualified majority.

If Council rejects the Parliamentary amendments and fails to vote unanimously, the legislation must then head towards conciliation and arbitration which is brain-bleedingly complicated since the Commission becomes involved.

No, if the Council does not manage to get the required majority, the directive is in limbo. In theory, it can stay forever at the Council's first reading stage (unless the Commission retracts the proposal). Conciliation only happens later in the process. First, after the Council agrees, it goes back to the European Parliament for a second reading.

There, the EP can only amend the text that returned from the Council with absolute majorities (nr_of_MEPs/2+1 must vote in favour in order for an amendment to be accepted, regardless of how many MEPs are actually present for voting).

Next, if the EP accepts the text without amendments, the directive is approved. It can also be downright rejected. Finally, if it's accepted with amendments it goes back to the Council for a second reading.

I don't know the exact rules in the Council for second reading, but if they accept the Parliament's amendments the directive is again approved, and if they amend it, it goes back to the EP for the third reading.

In the third reading, the EP can only say yes or no. If they say no, then conciliation happens.

So all is not lost, the insitutions are working, although I have to wonder about the fisheries involvement. I would have thought those ministers have their own problems at the moment.

An item at a Council session can either be a A-point (formality for approval) or B-point (discussion point). Because the Council reached a political agreement in May, it's technically possible to bring it as an A point on the Council for formal adoption of a Common Position (which would mean official acceptance by the Council).

Such an A-point can happen at any Council formation. So even though the competitiveness formation is responsible for the swpats, if they bring it on as A-point they can indeed have it signed at the Fisheries Council session.

Re:glad to see

[cpt kangarooski]

As far as I knew, patents are there to protect the inventors not the public.

Nope. Since the relevant clause in the Constitution deals with both patents and copyrights, I think it's fair to draw from both areas of caselaw.

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

"The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius." United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

A patent confers a monopoly on its holder, and the law does not allow the granting of these valuable franchises to private individuals, with consequent public detriment, unless there is a concomitant public benefit.

Beckman Instruments, Inc. v. Chemtronics, Inc., 428 F.2d 555 (5th Cir. 1970).

Your quote only describes what the PTO does. Not why, or even why we have a PTO in the first place!

As far as patents and public interest - most people could care less other then the fact that they want to get everything for free (thats too bad, because life doesn't work that way).

Nevertheless, getting everything for free would be ideal. While we can't have that unfortunately, we try to balance getting everything and getting it for free.

I think the caveman example is bad - for multiple reasons: 1) his patent expired 2) you cannot patent something you did not invent - and fire was not a man-made function.

1) He's a caveman. He never would've had a patent to begin with. But if you believe that patents solely should exist for the benefit of the inventor of the patented technology, then it is impossible to support their expiration.

2) If our patent system had been there, he could have patented fire. This is because he's uniquely gotten ahold of a controlled and limited form of fire made by man, and that doesn't exist in nature. The same reasoning is how you can patent substances that are particularly pure or easily gatherable, etc. where they nevertheless do exist in nature. Happens in the biotech field all the time.

It serves our interest to help them because if we don't - soon you will find that only major corporations own the farms (i personally hate KFC).

That's right -- and similarly, we only have a patent system to serve our own interests.

Here is a question: If an inventor should not have a right to collect a profit (as he see's fit) for something that he spent his time/money creating ---- why should someone who works at McDonalds serving hamburgers make a profit?

Apples and oranges, my friend.

Patents, like copyrights, are NOT awarded for labor. Whether an invention is made by a five year old in the course of fifteen minutes, or whether it's made by hundreds of scientists and engineers working together on a years-long billion dollar project, the patents they get are not materially different.

And an inventor who spends a fortune in time and money to invent something that has already been invented -- even if he didn't know about it -- gets ab