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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Thursday, November 18, 2004The EU Council and the Polish Position on Patentability of Computer-Implemented Inventions.So, Mr. Florian Müller's latest PR plot for the nosoftwarepatents.com campaign seems to have been a full success: They simply translated a somewhat fuzzy statement discovered on an Official website maintained by the Polish Government into various European languages, promoted a press release titled Poland Does Not Support Current Proposal for EU Software Patent Directive, and the entire corps of Internet-related journalists enthusiastically echoed the message over and over again. According to them, the message seems to be clear: European software patents not pending. But what about the facts?
As I  already have pointed out, the informal votes casted during the session of the EU Council in May 2004 confirmed a political solemn promise given by all of the EU Member States to each other to let the majority result pass unanimously even months later when all translations are done and the matter is tabled again as an "A" item for formally voting.
Since the website of the EU Council is in a lamentable poor condition it seems not to be possible to clarify the possible procedural steps by exactly pointing to the Council's written rules of procedure. If you go to the Council's Document Portal Page you might be happy to find a hyperlink labelled "Councils rules of procedure". However, if you dare to click on this link you will [tested today 2004-11-18] get merely a message "Page not found, please click here to go to the homepage". This is not the single broken hyperlink on the Document Portal page of the EU portal, there are lots of them. Obviously the administration of the EU Council seems to think that they are better off by maintaining and promoting only the parts of their website where press releases are delivered while allowing those parts of the Council's website to decay which can be used by the general public for closely monitoring the details of the Council's EU policy.
But when browsing the minutes of various sessions of the EU Council the impression is that the adoption of any "A" item is not a repetition of the casting of votes done weeks or months before when the same matter was on the agenda as a "B" item. Instead, all Council Members, even those having opposed or were standing absent are politically (not legally) bound by their promise given before to adopt any "A" item once politically accepted by a majority when it is eventually tabled together with all necessary translations. If this assumption is right we should expect that even those EU Member States formally accepting to adopt the proposal agreed upon earlier this year in May which then had voted against it or had abstained. Under this assumption it would be no surprise if the Draft Directive politically agreed upon by the EU Council in May would get a broad majority even if Poland should prefer to vote "no" or to abstain. And, there is also another option for Poland to let the "A" item go through but adding an "Unilateral Statement". An example of such "Unilateral Statement" can for example be seen in Document 13899/04 ADD 1 where there is a "Unilateral statement by the United Kingdom" related to the topic concerning "Item 1. Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders of the Member States of the European Union 10827/04 FRONT 117 COMIX 429". As the German Government stressed today, there is no single case known in the entire history of the EU where a political decision cast after having voted on a "B" item was successfully put into question when the same matter was tabled again as an "A" item. If Poland indeed would dare to effectively block a positive vote on an "A" item this surely would cause a major political crisis of the EU Council.
Hence, it seems that some of the euphoric statements greeting the alleged consequences of the statement of the Government of Poland are somewhat premature.
Maybe that the Dutch EU Presidency will prefer to defer that matter further. I would not even want to exclude that indeed not all translations are ready for formal voting. And when the great moment comes where the "A" items are called for voting we might well see that despite any possible reservations of the Polish Government the EU Council might formally adopt the May 2004 compromise.
The PR effect of the campaign is, of course, clear: With little dirty tricks like this one the anti-patent campaigners intend to create a political climate where the pressure on the various national Governments is stepped up not to allow the passing of the Directive in any reasonable form e.g. as politically agreed upon by the EU Council in May this year. In fact, they might hope that the current media hype will create a self-fulfilling hypothesis by politically enforcing another debate in the EU Council. I ho, however, not think that those anti-patent campaigners will prevail so far.
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