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Thursday, November 06, 2003

Amendments of the European Parliament: Preliminary analysis undertaken by the Commission services taken as basis for COREPER.

There are some interesting news: Despite some scepticism expressed about a week ago in my

earlier posting, the EU Council administration has decided to publish the said

document No. 13955/03 of the EU Council prepared by the General Secretariat, addressed to COREPER and concerning a "Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions - Examination of the amendments proposed by the European Parliament at first reading: procedure".

The document now published says that on the basis of a preliminary analysis undertaken by the Commission services, and taking into account the Council's common approach in the Annex to

14017/02, it appears to the Commission that the 64 amendments proposed by the European Parliament may be divided into four categories:

(a) amendments which could be accepted unconditionally (Amendments 1, 2, 3, 85, 7, 8, 9, 11, 12, 13, 15, 16, 17, 19, 71, 23, 26, 27 and 28);

(b) amendments which could be accepted subject to reformulation (Amendments 92, 25 and 89);

(c) amendments which might be susceptible to compromise (Amendments 88, 31, 34 (= 115), 86, 55rev (= 97, 108), 104 (= 120), 24, 81 and 93);

(d) amendments which would be unacceptable (Amendments 32 (= 112), 84, 114 (= 125), 36 (= 42, 117), 107 (= 69), 38 (= 44, 118), 45, 100 modified by 57 (= 99, 110), 70, 60, 102 (= 111), 72, 103 (= 119), 76 and 94).

With other words, the EU Commission has set up a "white list" of amendments which could be accepted unconditionally or subject to reformulation, a "grey list" of amendments which might be susceptible to compromise, and a "black list" of amendments which are considered to be unacceptable, the Council obviously being inclined to take this position more or less as a starting point. However, the delegations have not yet taken a final position on this breakdown of amendments into categories.

In order to see which topics are actually on the above-mentioned lists, the reader might be inclined to refer to the published document 11503/03

Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions – Outcome of the European Parliament's first reading (Strasbourg, 22 to 25 September 2003).

Hence, it looks as if the Commission would be prepared to negotiate things like definitions such as 'technical field' meaning 'an industrial application domain requiring the use of controllable forces of nature to achieve predictable results'. Surprisingly it looks as if they might also be prepared to enter into talks about a requirement proposed in amendments 104 and 120 according to which whenever a patent claim names features that imply the use of a computer program, a well-functioning and well documented reference implementation of such a program would have to be published as a part of description and without any restricting licensing terms.

Nevertheless, the preliminary analysis undertaken by the Commission services forms a good starting point for the coming deliberations because of it makes sufficientlyy clear that the amendmentss collected on the "black list" are far beyond being eligible for any further serious consideration. This is for sure good news for the European industry but also for sure there will be a public uproar staged by FFII e.V.

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