[Ecommerce] sw patents in Europe - illegalities on the Fishery Council

[Pedro de Paranaguá Moniz]

http://www.ffii.org/index.en.html


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

Dear EU Minister of Agriculture and Fisheries,

At the Agricultural Council's meeting next Monday, 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 less than one day before the session.

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 deceptive tactics by the
European Commission and questionable interpretations of the Council's
Rules of Procedure.

   1.

      Commissioner McCreevy has asked the European Parliament's Legal
      Affairs Committee to postpone its discussions about return to a
      First Reading until after February 2nd, when he intends to come
      for talks to the European Parliament. At the same time, Mr.
      McCreevy's Directorate for the Internal Market is pressing for
      rapid creation of facts in the Council, so that by the time of the
      meeting the European Parliament will already have lost its
      opportunity for return to 1st reading under Rule 55.

   2.

      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 representative must abstain. If the
      Dutch representative 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.

   3.

      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.

   4.

      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.

   5.

      The Latvian Government has raised concerns in a unilateral
      statement about the proposed text. The French
      <http://swpat.ffii.org/papers/europarl0309/cec0405/> and Hungarian
      <http://register.consilium.eu.int/pdf/en/04/st16/st16120-ad01.en04.pd=
f>
      governments have also expressed reservations. In Slovenia
      <http://wiki.ffii.org/Slov040514En>, Slovakia
      <http://swpat.ffii.org/papers/europarl0309/cons0401/st09051/st09051.h=
tml#sdfootnote1sym>,
      Portugal and Hungary the position industry and government takes in
      public is also not in line with their votes in council.

   6.

      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. <http://k.lenz.name/LB/>

   7.

      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.

   8.

      The explanatory documents for the Council draft were made
      available only in early December. 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.

   9.

      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.

  10.

      The fact that just the delay provided by the Polish official in
      charge has resulted in over 25000 thanking signatures
      <http://thankpoland.info/> shows that the decision is not only
      procedurally illegitimate but also unpopular, and does not help
      the credibility of EU insitutions.

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.
<http://swpat.ffii.org/papers/europarl0309/cons0401/tab/> 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 Council is interpreting its rules in an anti-democratic
spirit, and, in doing so, creating new harmful precedents for the EU. It
is inappropriate for the current Council Proposal to be passed as an
A-item, and there is no need for you as a minister of agriculture or
fishery to stand for this with your name. Please ask the concerned
minister to take the full responsibility into his hand and to credibly
address the issues.

Yours sincerely,

************************

Pedro de Paranaguá Moniz
Masters in Law (LL.M.) candidate, class of 2004/2005
Queen Mary, University of London