The Directive seeks to harmonise European rules on the patentability of "computer-implemented inventions" – devices like mobile phones, intelligent household appliances, engine control devices, machine tools and computer program-related inventions. But many are concerned that the Directive risks bringing to Europe the more liberal regime of software and business method patenting that exists in the US.
After many delays the draft Directive came before the European Parliament in September last year, and was passed only after many amendments were made to tighten the scope for patentability, pleasing small businesses and developers but angering some of the big players in the industry, who called on the Council of Ministers to reverse the position.
European Trade Ministers did so in May, adopting a common position that reinstated much of the original Commission proposals, much to the delight of the Commission, which claimed that the text would provide legal clarity while avoiding any drift towards patents for business methods or computer programs that do not provide any technical contribution to the state of the art.
The measure then had to go forward for approval by the Council of Ministers. It should have come before the Competitiveness Council today.
But according to the Greens/EFA Group in the European Parliament, the Council has decided to remove the Directive from its agenda for today's meeting. It will now, says the Group, be referred back to Coreper – the committee for EU permanent representative offices – for further technical discussion.
It is unusual for Ministers to make decisions on issues that have not already been thrashed out by Coreper, which does the Council leg work. The implication is therefore that there is still disagreement between Member States behind the scenes, such that a rubber stamp could not yet be applied to the compromise proposals.
"Officially, the Council has experienced translation difficulties with the new official languages of the EU," said Daniel Cohn-Bendit, Co-President of the Greens/EFA Group. "In reality this file is returning to Coreper in order to allow the technical discussions between experts from the Member States to continue."
"I am pleased that the Parliament's position, which wanted to limit patents to technical inventions, is now also defended by the Council," said Cohn-Bendit.
"The so-called compromise adopted by the Council on 18th June makes a mockery of the Parliament's position and opens the door to software patents – and consequently, to the control of the EU's economy by a small number of multinationals. I hope that the next proposal will be better and that Parliament will finally be able to start the second reading of the directive by the end of the year," he added.
The announcement comes shortly after appeals from lobby groups that the compromise proposals be shelved.
On 6th September the Free Software Foundation Europe sent an open letter asking the Dutch EU Presidency to reconsider the compromise proposals, warning that it would adversely hit the EU target of making Europe the "most competitive knowledge-based economy by 2010".
"30,000 software patents already exist in the EU," said the letter. "Three quarters of software patents are held by non-European companies. To give software patents a legal basis may be a decision which would make the EU far less competitive."
A day earlier, the Foundation for a Free Information Infrastructure (FFII) had called on the Committee of National Parliaments – which has members from the European Parliament and from committees of national parliaments dealing with European affairs – to look at what it calls "democratic deficits in the European Union", particularly relating to the time which has been given to new Member States to consider the proposals.
The FFII urged the Council of Ministers to look at the proposals again, rather than simply rubber-stamping them.
It appears that the FFII's wish has been granted.